-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QHkMC1xxaqVmPHgPoNhVGnGU1c/PbeDJ70WlBO7zRTgRBiFuM+c+waaNRdEzmX0j vdGti6isNR8LcQBTlaE7/A== 0000950131-97-000263.txt : 19970120 0000950131-97-000263.hdr.sgml : 19970120 ACCESSION NUMBER: 0000950131-97-000263 CONFORMED SUBMISSION TYPE: S-1 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970117 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: SIMON TRANSPORTATION SERVICES INC CENTRAL INDEX KEY: 0001000577 STANDARD INDUSTRIAL CLASSIFICATION: TRUCKING (NO LOCAL) [4213] IRS NUMBER: 870545608 STATE OF INCORPORATION: NV FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-1 SEC ACT: 1933 Act SEC FILE NUMBER: 333-20019 FILM NUMBER: 97507654 BUSINESS ADDRESS: STREET 1: 4646 SOUTH 500 WEST CITY: SALT LAKE CITY STATE: UT ZIP: 84123 BUSINESS PHONE: 8012689100 MAIL ADDRESS: STREET 1: 4646 SOUTH 500 WEST CITY: SALT LAKE CITY STATE: UT ZIP: 84123 S-1 1 FORM S-1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY , 1997 REGISTRATION NO. - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ---------------- FORM S-1 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------- SIMON TRANSPORTATION SERVICES INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER) NEVADA 4213 87-0545608 (PRIMARY STANDARD (I.R.S. EMPLOYER (STATE OR OTHER INDUSTRIAL IDENTIFICATION NUMBER) JURISDICTION OF CLASSIFICATION CODE INCORPORATION OR NUMBER) ORGANIZATION) ---------------- 4646 SOUTH 500 WEST SALT LAKE CITY, UTAH 84123 (801) 268-9100 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) ---------------- RICHARD D. SIMON CHAIRMAN, PRESIDENT, AND CHIEF EXECUTIVE OFFICER SIMON TRANSPORTATION SERVICES INC. 4646 SOUTH 500 WEST SALT LAKE CITY, UTAH 84123 (801) 268-9100 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ---------------- COPIES TO: MARK A. SCUDDER, ESQ. ROBERT WALKER, ESQ. HEIDI HORNUNG SCHERR, ESQ. BAKER, DONELSON, BEARMAN & CALDWELL SCUDDER LAW FIRM, P.C. 20TH FLOOR, FIRST TENNESSEE BUILDING 411 SOUTH 13TH STREET 165 MADISON AVENUE SUITE 200 MEMPHIS, TENNESSEE 38103 LINCOLN, NEBRASKA 68508 (901) 526-2000 (402) 435-3223 ---------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after this Registration Statement becomes effective. 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, check the following box: [_] ---------------- CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------- - -------------------------------------------------------------------------------
PROPOSED PROPOSED MAXIMUM AMOUNT OF TITLE OF EACH CLASS OF AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING REGISTRATION SECURITIES TO BE REGISTERED REGISTERED(1) PRICE PER SHARE(2) PRICE(2) FEE - ------------------------------------------------------------------------------------------------ Class A Common Stock, $.01 par value........ 2,300,000 shares $16.50 $37,950,000 $11,500
- ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- (1) Includes 300,000 shares that the underwriters have the option to purchase solely to cover over-allotments, if any. (2) Estimated pursuant to Rule 457(c), based upon the average of the bid and asked price of the Common Stock as reported by the Nasdaq National Market on January 10, 1997, solely for the purpose of calculating the registration fee. 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 COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SIMON TRANSPORTATION SERVICES INC. CROSS REFERENCE SHEET PURSUANT TO ITEM 501(B) OF REGULATION S-K
FORM S-1 ITEM NUMBER AND CAPTION LOCATION OR CAPTION IN PROSPECTUS -------------------------------- --------------------------------- 1.Forepart of Registration Statement and Outside Front Facing Page of Registration Statement; Outside Cover Page of Prospectus..... Front Cover Page of Prospectus 2.Inside Front and Outside Back Cover Pages of Prospectus.... Inside Front Cover Page of Prospectus 3.Summary Information, Risk Factors and Ratio of Earnings to Fixed Charges............. Prospectus Summary; Risk Factors 4.Use of Proceeds................ Prospectus Summary; Use of Proceeds 5.Determination of Offering Outside Front Cover Page of Prospectus; Price........................ Underwriting 6.Dilution....................... * 7.Selling Security Holders....... Principal and Selling Stockholders 8.Plan of Distribution........... Underwriting 9.Description of Securities to be Description of Capital Stock; Shares Eligible Registered................... for Future Sale 10.Interests of Named Experts and Counsel...................... * 11.Information with Respect to the Registrant: (a)Item 101 of Regulation S-K... Prospectus Summary; Holding Company Formation; Industry Overview; Business (b)Item 102 of Regulation S-K... Business--Properties (c)Item 103 of Regulation S-K... Business--Legal Proceedings (d)Item 201 of Regulation S-K... Dividend Policy; Underwriting; Description of Capital Stock (e)Financial Statements......... Consolidated Financial Statements of Simon Transportation Services Inc. (f)Item 301 of Regulation S-K... Selected Consolidated Financial and Operating Data (g)Item 302 of Regulation S-K... Selected Quarterly Financial Data (h)Item 303 of Regulation S-K... Management's Discussion and Analysis of Financial Condition and Results of Operations (i)Item 304 of Regulation S-K... * (j)Item 401 of Regulation S-K... Management (k)Item 402 of Regulation S-K... Management (l)Item 403 of Regulation S-K... Principal and Selling Stockholders (m)Item 404 of Regulation S-K... Holding Company Formation; Management-- Compensation Committee Interlocks and Insider Participation; Certain Transactions 12.Disclosure of Commission Position on Indemnification for Securities Act Liabilities.................. *
- -------- * Omitted because answer is negative or item is not applicable. ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ +INFORMATION 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 JANUARY , 1997 2,000,000 SHARES SIMON TRANSPORTATION CLASS A COMMON STOCK ----------- Of the 2,000,000 shares of Class A Common Stock offered hereby (the "Offering"), 1,425,000 are being sold by Simon Transportation Services Inc. (the "Company") and 575,000 are being sold by certain stockholders of the Company (the "Selling Stockholders"). See "Principal and Selling Stockholders." The Company will not receive any proceeds from the sale of the Class A Common Stock by the Selling Stockholders. The Company's Class A Common Stock is traded on the Nasdaq National Market under the symbol "SIMN." The closing price of the Company's Class A Common Stock on January 16, 1997, was $17 5/8 per share. The Company's authorized capital stock includes Class A Common Stock, Class B Common Stock (together with the Class A Common Stock, the "Common Stock") and preferred stock. The Class A Common Stock is substantially identical to the Class B Common Stock, except with respect to voting rights. The Class A Common Stock is entitled to one vote per share, and the Class B Common Stock is entitled to two votes per share so long as it is beneficially owned by Richard D. Simon or certain members of his immediate family. See "Risk Factors--Voting Control of the Company" and "Description of Capital Stock." ----------- SEE "RISK FACTORS" BEGINNING ON PAGE 6 OF THIS PROSPECTUS FOR CERTAIN INFORMATION THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS. ----------- THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. - -------------------------------------------------------------------------------- - --------------------------------------------------------------------------------
UNDERWRITING PROCEEDS TO PRICE TO DISCOUNTS AND PROCEEDS TO SELLING PUBLIC COMMISSIONS(1) COMPANY(2) STOCKHOLDERS - -------------------------------------------------------------------------------- Per Share.................. $ $ $ - -------------------------------------------------------------------------------- Total(3)................... $ $ $
- -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (1) The Company has agreed to indemnify the Underwriters against certain liabilities, including liabilities arising under the Securities Act of 1933, as amended (the "Securities Act"). See "Underwriting." (2) Before deducting expenses estimated at approximately $200,000 payable by the Company. (3) The Company and one of the Selling Stockholders have granted the Underwriters an option, exercisable within 30 days after the date hereof, to purchase up to an additional 100,000 and 200,000 shares of Class A Common Stock, respectively, at the Price to Public less Underwriting Discounts and Commissions, solely to cover over-allotments, if any. If all such shares are purchased, the total Price to Public, Underwriting Discounts and Commissions, Proceeds to Company, and Proceeds to Selling Stockholders will be $ , $ , $ and $ , respectively. See "Underwriting." ----------- The Class A Common Stock is offered by the several Underwriters, subject to prior sale, when, as and if issued to and accepted by the Underwriters, subject to their right to withdraw, cancel, modify, or reject orders in whole or in part, and subject to certain other conditions. It is expected that delivery of the shares of Class A Common Stock offered hereby will be made on or about February , 1997. MORGAN KEEGAN & COMPANY, INC. A.G. EDWARDS & SONS, INC. GEORGE K. BAUM & COMPANY The date of this Prospectus is February , 1997 AVAILABLE INFORMATION The Company has filed with the Securities and Exchange Commission (the "Commission") a Registration Statement on Form S-1 (together with all amendments and exhibits thereto, the "Registration Statement") under the Securities Act of 1933 with respect to the Class A Common Stock offered hereby. This Prospectus, which constitutes part of the Registration Statement, does not contain all of the information set forth in the Registration Statement, certain parts of which are omitted in accordance with the rules and regulations of the Commission. For further information with respect to the Company and the Class A Common Stock, reference is made to the Registration Statement and the exhibits and schedules filed as a part thereof. The Registration Statement and the exhibits thereto, as well as the reports, proxy statements, and other information filed by the Company under the Exchange Act may be examined without charge at the Public Reference Section of the Commission located at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, DC 20549, at the regional offices of the Commission located at 7 World Trade Center, Suite 1300, New York, NY 10048, and 500 West Madison Street, Suite 1400, Chicago, IL 60661-2511, and at the Web site maintained by the Commission at http://www.sec.gov. Statements made in this Prospectus as to the contents of any contract, agreement, or other document referred to are not necessarily complete. With respect to each such contract, agreement, or other document filed as an exhibit to the Registration Statement, reference is made to the exhibit for a more complete description of the matter involved, and each such statement shall be deemed qualified in its entirety by such reference. ---------------- IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVERALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE CLASS A COMMON STOCK AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. IN CONNECTION WITH THIS OFFERING, CERTAIN UNDERWRITERS AND SELLING GROUP MEMBERS, IF ANY, MAY ENGAGE IN PASSIVE MARKET MAKING TRANSACTIONS IN THE CLASS A COMMON STOCK ON THE NASDAQ STOCK MARKET IN ACCORDANCE WITH RULE 10B-6A UNDER THE SECURITIES EXCHANGE ACT OF 1934. SEE "UNDERWRITING" 2 PROSPECTUS SUMMARY The following summary is qualified in its entirety by the more detailed information and the Consolidated Financial Statements, including the Notes thereto, appearing elsewhere in this Prospectus. Unless otherwise indicated in this Prospectus, (i) all information assumes that the Underwriters' over- allotment option is not exercised; (ii) all references to the "Company" or "Simon Transportation" refer to Simon Transportation Services Inc. and Dick Simon Trucking, Inc., a Utah corporation and wholly owned subsidiary of Simon Transportation Services Inc; and (iii) all financial information includes the historical operations of Dick Simon Trucking, Inc. and R. D. Simon Trucking, a sole proprietorship formerly owned by Richard D. Simon. See "Holding Company Formation" and Note 1 to Consolidated Financial Statements. THE COMPANY Simon Transportation has become one of the country's fastest-growing truckload carriers by providing nationwide, predominantly temperature- controlled transportation services for major shippers in the food industry. Many large shippers rely upon a limited number of transportation partners, or core carriers, to provide just-in-time deliveries, dedicated fleet service, and "continuous movement" of equipment. By offering these and other premium services at a cost generally lower than private fleets, Simon Transportation has become a core carrier for service-sensitive national accounts such as Nestle, Kraft, M&M Mars, ConAgra, Albertson's, Pillsbury, Campbell's Soup, and Coca-Cola Foods. Management believes that serving food industry shippers is desirable because their products are generally less affected by economic cycles, and many of these shippers require time-sensitive and specialized service that justifies a higher rate per mile. As a result of this strategy, Simon Transportation has increased its revenue to $101.1 million in fiscal 1996 from $40.8 million in fiscal 1992, a 25.5% compounded annual growth rate. During the same period, operating earnings more than doubled to $9.2 million from $4.5 million. Simon Transportation substantially expanded and upgraded its tractor and trailer fleets during the fiscal year ended September 30, 1996. After applying the net proceeds of its November 1995 initial public offering to reduce debt and purchase revenue equipment, the Company took delivery of approximately 665 new tractors and traded approximately 348 older models. This expanded Simon Transportation's fleet by 317 tractors and reduced the fleet's average age to approximately 13 months at September 30, 1996. Following the fleet upgrade, all of the Company's tractors are equipped with electronic engines and Qualcomm satellite-based tracking and communication units, and most are covered with three-year, 500,000 mile engine warranties. Simon Transportation also took delivery of 806 new 53-foot, temperature-controlled trailers during fiscal 1996, in response to customer demand for greater freight capacity. The Company has scheduled deliveries that would increase its fleet by approximately 360 tractors and 500 53-foot trailers during fiscal 1997 and has options on an additional 100 tractors. Simon Transportation's fleet expansion and upgrade, along with strong customer demand, contributed to 34.4% revenue growth in fiscal 1996, to $101.1 million from $75.2 million in fiscal 1995. In addition to increasing its weighted average tractor fleet by 29.4%, the Company improved its revenue per tractor per week by approximately 4.5%. The newer tractors also improved fuel efficiency and lowered maintenance and repair costs. These factors contributed toward improving Simon Transportation's pretax margin to 6.3% in fiscal 1996 from 3.4% in fiscal 1995. The truckload industry, including the temperature-controlled segment, is consolidating in response to several identifiable trends. Many major shippers are reducing the number of carriers they use in favor of service-based, ongoing relationships with a limited group of core carriers. These partnerships and the increasing use of equipment and drivers dedicated to a single shipper's needs ("dedicated fleets") are designed to ensure higher quality, more consistent service for shippers and greater equipment utilization and more predictable revenue for 3 core carriers. Other shippers that own tractor-trailer fleets are outsourcing their transportation requirements to truckload carriers to lower operating expenses and conserve capital for core corporate purposes. This outsourcing has resulted in some shippers eliminating their own trucks in favor of truckload carriers, which, according to a study commissioned by the American Trucking Associations Foundation, can provide similar service at approximately 25% less cost. Deregulation and economies of scale also promote consolidation. Many truckload carriers have grown rapidly since deregulation in 1980 and have achieved the size to negotiate lifetime equipment warranties and obtain equipment, fuel, insurance, financing, and other items for significantly less than smaller or more leveraged competitors. All of these trends favor large carriers with modern fleets, excellent service, in-transit communication and load tracking, good drivers, a strong safety record, adequate insurance, and a strong capital base. Management plans to continue the Company's growth and believes that the Company's net proceeds of the Offering will strengthen its ability to capitalize on these industry trends. Simon Transportation Services Inc. was incorporated under the laws of Nevada in August 1995 to own 100% of Dick Simon Trucking, Inc., which was incorporated in Utah in 1972. The Company's headquarters is located at 4646 South 500 West, Salt Lake City, Utah 84123, and its telephone number is (801) 268-9100. THE OFFERING Class A Common Stock offered by the Company........................... 1,425,000 shares Class A Common Stock offered by the Selling Stockholders.............. 575,000 shares(1) Common Stock to be outstanding after the Offering: Class A Common Stock............. 4,787,257 shares(2) Class B Common Stock............. 1,382,661 shares(1) Total.............................. 6,169,918 shares(2) Use of Proceeds.................... Purchase new revenue equipment and provide working capital. See "Use of Proceeds." Nasdaq National Market symbol...... SIMN
- -------- (1) Richard D. Simon is selling 10,500 shares of Class A Common Stock and 489,500 shares of Class B Common Stock, which will immediately convert to Class A Common Stock upon sale. The Class A Common Stock is entitled to one vote per share. The Class B Common Stock is entitled to two votes per share and automatically converts into Class A Common Stock if beneficially owned by persons other than Richard D. Simon and certain members of his immediate family. The Class A and Class B Common Stock vote together as a single class except as required by law and are substantially identical, except with respect to voting rights. See "Description of Capital Stock." (2) Excludes approximately 398,000 shares of Class A Common Stock reserved for issuance under the Company's Incentive Stock Plan, options to purchase approximately 363,700 of which are currently outstanding. Also excludes 24,000 shares of Class A Common Stock reserved for issuance under the Company's Outside Director Stock Plan, options to purchase 4,000 of which are currently outstanding. See "Management--Incentive Stock Plan" and "Management--Directors' Compensation." RISK FACTORS There are a number of factors that should be considered by potential investors before purchasing shares of the Company's Class A Common Stock. See "Risk Factors." 4 SUMMARY CONSOLIDATED FINANCIAL AND OPERATING DATA (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS AND OPERATING DATA)
THREE MONTHS ENDED YEARS ENDED SEPTEMBER 30, DECEMBER 31, -------------------------------------------- ---------------- 1992 1993 1994 1995 1996 1995 1996 ------- ------- ------- ------- -------- ------- ------- STATEMENT OF EARNINGS DATA: Operating revenue...... $40,823 $57,694 $71,691 $75,218 $101,090 $20,588 $34,166 Operating earnings..... 4,520 4,943 6,282 6,076 9,161 1,661 2,433 Interest expense and other, net............ 1,276 2,559 3,136 3,527 2,758 (806) (446) Provision for income taxes(1).............. -- -- -- -- 5,454 3,257 751 Net earnings(2)........ 3,244 2,384 3,146 2,549 949 (2,402) 1,236 PRO FORMA STATEMENT OF EARNINGS DATA:(2) Earnings before provision for income taxes................. 3,244 2,384 3,146 2,549 6,403 855 1,987 Provision for income taxes................. 1,285 944 1,246 1,010 2,536 339 751 Net earnings........... 1,959 1,440 1,900 1,539 3,867 516 1,236 Net earnings per common share................. $ 0.85 $ 0.63 $ 0.83 $ 0.67 $ 0.88 $ 0.15 $ 0.26 Weighted average common shares outstanding.... 2,300 2,300 2,300 2,300 4,418 3,451 4,743 OPERATING DATA: Operating ratio(3)..... 88.9% 91.4% 91.2% 91.9% 90.9% 91.9% 92.9% Pretax margin.......... 7.9% 4.1% 4.4% 3.4% 6.3% 4.2% 5.8% Average revenue per loaded mile........... $ 1.23 $ 1.23 $ 1.23 $ 1.26 $ 1.24 $ 1.25 $ 1.27 Average revenue per mile operated......... $ 1.07 $ 1.07 $ 1.10 $ 1.11 $ 1.10 $ 1.10 $ 1.12 Average revenue per tractor per week...... $ 2,582 $ 2,471 $ 2,489 $ 2,417 $ 2,526 $ 2,513 $ 2,665 Empty miles percentage............ 13.2% 12.6% 10.7% 11.3% 11.7% 11.8% 12.0% Average length of haul in miles.............. 596 677 725 949 984 1,004 979 Weighted average tractors.............. 304 449 554 598 774 632 990 Tractors at end of period................ 389 523 570 623 940 647 1,011 Trailers at end of period................ 589 745 873 877 1,430 915 1,550
DECEMBER 31, 1996 ---------------------- ACTUAL AS ADJUSTED(4) ------- -------------- BALANCE SHEET DATA: Net property and equipment............................ $55,836 $55,836 Total assets.......................................... 78,528 102,062 Long-term debt and capitalized leases, including current portion...................................... 38,013 38,013 Stockholders' equity.................................. 30,359 53,893
- -------- (1) The provisions for income tax for fiscal 1996 and the three months ended December 31, 1995, include a one-time, non-cash charge of approximately $3.0 million in recognition of deferred income taxes that resulted from the Company's conversion to a C Corporation on November 17, 1995, the date of its initial public offering. (2) The Company was treated as an S Corporation for federal and state income tax purposes from October 1, 1990, to November 16, 1995. As a result, the Company's taxable earnings for such period were taxed for federal and state income tax purposes directly to the Company's then-existing stockholders. The pro forma statement of earnings data give effect to an adjustment for a provision for federal and state income taxes as if the Company had been treated as a C Corporation during all periods reported. The pro forma statement of earnings data do not give effect to the one-time, non-cash charge of approximately $3.0 million in recognition of deferred income taxes that resulted from the Company's conversion to a C Corporation on November 17, 1995, the date of its initial public offering. See Note 3 to Consolidated Financial Statements. (3) Operating expenses as a percentage of revenue. The Company's operating ratio is affected by the method of equipment financing. See "Management's Discussion and Analysis of Financial Condition and Results of Operations." (4) Adjusted for the sale of the 1,425,000 shares of Class A Common Stock offered by the Company and the application of the estimated net proceeds therefrom as described under "Use of Proceeds." 5 CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS When used in this report, the words "believe," "anticipate," "expects to," and similar expressions are intended to identify forward-looking statements (as such term is defined in the Securities Act of 1933, as amended (the "Securities Act")). Such statements are based on current knowledge and current judgments, but are subject to certain risks and uncertainties that could cause the actual results to differ materially from those projected. Readers are cautioned not to place undue reliance on these forward-looking statements which speak only as of the date hereof. Readers are also urged to carefully review and consider the various disclosures made by the Company that attempt to advise interested parties of the factors that affect the Company's business, including the disclosures made under the heading "Risk Factors" and "Management's Discussion and Analysis of Financial Condition and Results of Operations." RISK FACTORS In addition to the other information in this Prospectus, the following risk factors should be considered carefully in evaluating an investment in the shares of Class A Common Stock. ECONOMIC FACTORS; FUEL PRICES The Company has little or no control over economic factors such as fuel prices, fuel tax, interest rate fluctuations, recessions, and customers' business cycles. Fuel prices increased substantially during the Company's 1996 fiscal year, and not all of the increased fuel cost was recovered through higher rates and fuel surcharges. An extended period of elevated fuel prices or significant increases in other operating costs and interest rates, to the extent not offset by increases in freight rates, would adversely affect the Company's operating results. Economic recessions, temporary inventory imbalances, or downturns in customers' business cycles also could have a materially adverse effect upon the operating results of the Company. The Company historically has recognized a gain on the sale of its revenue equipment. If the resale value of the Company's revenue equipment were to decline, the Company could find it necessary to dispose of its equipment at lower prices or retain some of its equipment longer, with a resulting increase in operating expenses. See "Management's Discussion and Analysis of Financial Condition and Results of Operations" and "Business--Fuel Availability and Cost." DEPENDENCE ON CERTAIN CUSTOMERS For the fiscal year ended September 30, 1996, the Company's 25 largest customers represented 75.2% of revenue, its ten largest customers represented 60.1% of revenue, and its five largest customers represented 45.7% of revenue. Nestle, including all divisions, accounted for 18.7% of revenue during fiscal 1996. Most of the Company's contracts with customers are cancelable on 30 days' notice. The loss of any of its major customers could have a materially adverse effect on the Company's operating results and profitability. See "Business--Customers and Marketing." RECRUITMENT, RETENTION, AND COMPENSATION OF QUALIFIED DRIVERS Competition for drivers is intense in the trucking industry, and the Company occasionally experiences difficulty attracting and retaining enough qualified drivers. There is, and historically has been, an industry-wide shortage of qualified drivers, and this shortage could affect the Company's operations and profitability in the future, force the Company to significantly increase the compensation it pays to driver employees, or curtail the Company's growth. The nation's second largest truckload carrier, J.B. Hunt Transport, Inc., recently announced a substantial increase in the per-mile compensation of certain of its drivers. The effect, if any, this will have on driver compensation and retention is unknown. Difficulty in attracting and retaining qualified drivers would have a materially adverse effect upon the Company's operations and ability to grow. See "Business--Drivers and Other Personnel." 6 CHALLENGES TO RAPID GROWTH OF BUSINESS The Company has scheduled deliveries that would increase its fleet by approximately 360 tractors and 500 53-foot trailers during fiscal 1997 and has options to purchase an additional 100 tractors. There can be no assurance that the Company will be able to attract and retain enough qualified drivers to meet that growth. There also can be no assurance that scheduled deliveries of revenue equipment will not be delayed because of manufacturers' inability to meet the demand for tractors, trailers, engines, or other components. Further, expected growth, if achieved, may place a significant strain on the Company's management, working capital, and accounting and other operating systems. There is no assurance that such systems will be adequate to handle such growth or that operating margins will not be adversely affected by future changes in and expansion of the Company's business. Finally, the Company may be forced to curtail its plans for growth due to changes in economic conditions, particularly decreased demand for truckload carrier services. See "Business-- Strategy" and "Revenue Equipment." COMPETITION The trucking industry is highly competitive and fragmented. The Company competes primarily with other truckload carriers that provide temperature- controlled service, private fleets operated by existing and potential customers, and, to a lesser extent, railroads. Competition for the freight transported by the Company is based primarily on service, efficiency, and freight rates. The Company competes with a number of other trucking companies, including truckload carriers that have temperature-controlled divisions. Some of these competitors have substantially greater financial resources, operate more equipment, or carry a larger volume of freight than the Company. See "Business--Competition." CAPITAL REQUIREMENTS; LEVERAGE The trucking industry requires extensive investment in revenue equipment. The Company historically has relied upon debt, capitalized leases, operating leases, and the net proceeds of its initial public offering to finance new revenue equipment. The Company has granted its lenders liens on a substantial portion of its assets. If in the future the Company were unable to borrow sufficient funds, enter into acceptable lease arrangements, sell or trade its used equipment at acceptable prices, or raise additional equity capital, the resulting capital shortage would limit the Company's growth and force the Company to operate its revenue equipment for longer periods, which would be likely to adversely affect the Company's growth and profitability. The Company currently has a long-term debt to total capitalization ratio higher than many of its competitors. The Company's long-term debt to total capitalization ratio will improve significantly after application of the estimated net proceeds from the Offering. See "Use of Proceeds," "Capitalization," and "Management's Discussion and Analysis of Financial Condition and Results of Operations-- Liquidity and Capital Resources." VOTING CONTROL OF THE COMPANY On all matters with respect to which the Company's stockholders have a right to vote, including the election of directors, each share of Class A Common Stock is entitled to one vote, while each share of Class B Common Stock is entitled to two votes. Neither class of Common Stock is entitled to cumulative voting in the election of directors. The Class B Common Stock is convertible into shares of Class A Common Stock on a share-for-share basis at the election of the holder and will be converted automatically into shares of Class A Common Stock if beneficially owned by any person other than Richard D. Simon or certain members of his immediate family. Upon completion of the Offering, the Simon family will beneficially own approximately 6.0% of the outstanding shares of Class A Common Stock and all of the outstanding shares of Class B Common Stock, which together will represent approximately 27.0% of all of the outstanding shares of Common Stock and 40.4% of the total voting power of the Company's outstanding shares (approximately 23.4% ownership and 35.6% of the total voting power if the Underwriters' over-allotment option is exercised in full). Although the Simons will not control a majority of the votes entitled to be cast by holders of the Company's Common Stock, they will have substantial ability to influence the election of the Board of Directors of the Company and determine the outcome of matters involving a stockholder vote. Such control by the Simons could make it more difficult for a third party 7 to acquire, or discourage a third party from attempting to acquire, control of the Company. See "Principal and Selling Stockholders" and "Description of Capital Stock." DEPENDENCE UPON KEY PERSONNEL The Company's success is highly dependent upon the continued services of Richard D. Simon, the Company's Chairman of the Board, President, and Chief Executive Officer. The loss of Mr. Simon could materially and adversely affect the Company's continued growth and profitability. There can be no assurance that the Company will be able to attract and retain qualified management in the future. The Company does not carry key-man insurance on any of its officers or directors. See "Management." LIMITATIONS ON TAKEOVERS Certain corporate governance and statutory provisions may inhibit changes in control of the Company. Applicable provisions of Nevada law restrict the voting rights of certain acquirors and the ability of such persons to engage in unapproved business combinations with the Company. The Company's Articles of Incorporation permit the issuance of additional shares of authorized but unissued Class B Common Stock, which is entitled to two votes per share while owned by certain members of the Simon family, and allow the Board of Directors to establish all relevant provisions of, and issue preferred stock without further action by the stockholders. Such preferred stock could be used, for example, in a stockholders' rights plan. The Company's Bylaws limit the persons who may call a special meeting of the stockholders. The effect of these provisions and the Simons' stock ownership could be to make a takeover more difficult or to discourage a person from attempting a takeover, including a takeover that some stockholders may deem to be in their best interests. See "Description of Capital Stock--Certain Provisions of Articles and Bylaws" and "Statutory Anti-Takeover Provisions." CLAIMS EXPOSURE AND INSURANCE COSTS Trucking companies, including the Company, face multiple claims for personal injury and property damage relating to accidents, cargo damage, and workers' compensation. The Company currently maintains liability insurance for bodily injury and property damage with a deductible of $100,000, along with workers' compensation insurance with a deductible, in states in which a deductible is allowed, of $100,000. The Company also carries cargo and physical damage insurance. To the extent that the Company experiences a material increase in the frequency or severity of accidents or workers' compensation claims, or unfavorable developments on existing claims, the Company's operating results and financial condition could be materially adversely affected. Significant increases in the Company's claims and insurance cost, to the extent not offset by rate increases, would reduce the Company's profitability. See "Business-- Safety and Insurance." SEASONALITY The Company serves primarily food-industry customers that require temperature-controlled trailers. Shipments are generally reduced during the first calendar quarter of each year, and the Company's operating expenses historically have been higher in the winter months due to decreased fuel efficiency and increased maintenance costs in colder weather. The Company's operating revenue and net income may vary as a result of seasonal factors, and accordingly, results of operations are subject to fluctuation, and results in any period should not be considered indicative of the results to be expected for any future period. Fluctuations in operating results may also result in fluctuations in the price of the Class A Common Stock. See "Management's Discussion and Analysis of Financial Condition and Results of Operations-- Seasonality." ENVIRONMENTAL MATTERS The Company's operations are subject to various environmental laws and regulations dealing with the transportation, storage, presence, use, disposal, and handling of hazardous materials and hazardous wastes, discharge of stormwater, and underground fuel storage tanks. The Company maintains above- ground and underground fuel storage tanks on its properties. Although the Company is not aware of any fuel spills or 8 hazardous substance contamination on its properties and believes that its operations are in material compliance with existing environmental laws and regulations, if any such substances were found on the Company's properties or if the Company were found to be in violation of applicable laws and regulations, the Company could be responsible for clean-up costs, property damage, and fines or other penalties, any one of which could have a materially adverse effect on the Company. See "Business--Properties" and "Regulation." SHARES ELIGIBLE FOR FUTURE SALE Sales of a substantial number of shares of Class A Common Stock or the availability of such shares for sale in the public market following the Offering may adversely affect prevailing market prices for the Class A Common Stock and may make it more difficult for the Company to sell its equity securities in the future on terms it deems appropriate. Upon completion of the Offering, the Company will have 6,169,918 shares of outstanding Common Stock. All of the 2,000,000 shares of Class A Common Stock offered hereby (2,300,000 shares if the Underwriters' over-allotment option is exercised in full) will be freely tradeable without restriction or further registration unless acquired by "affiliates" of the Company as defined in Rule 144 of the Securities Act ("Rule 144"). In connection with the Offering, the Selling Stockholders, along with the Company and its other executive officers and directors, who will beneficially own approximately 1,738,178 or 28.2% of the Company's outstanding Common Stock after the Offering, have agreed not to sell or otherwise dispose of any of their shares, directly or indirectly, for 180 days from the date of this Prospectus without the prior written consent of Morgan Keegan & Company, Inc. After the 180 day period all such shares will be eligible for sale, subject to compliance with Rule 144. See "Principal and Selling Stockholders" and "Shares Eligible for Future Sale." GOVERNMENT REGULATION The Company is a common and contract motor carrier of general commodities. Historically, the Interstate Commerce Commission (the "ICC") and various state agencies regulated motor carriers' operating rights, accounting systems, mergers and acquisitions, periodic financial reporting, and other matters. In 1995, federal legislation preempted state regulation of prices, routes, and services of motor carriers and eliminated the ICC. Several ICC functions were transferred to the Department of Transportation (the "DOT"). Management does not believe that regulation by the DOT or by the states in their remaining areas of authority will have a material effect on the Company's operations. The Company's employee and independent contractor drivers also must comply with the safety and fitness regulations promulgated by the DOT, including those relating to drug and alcohol testing and hours of service. The DOT possesses the authority to enforce these rules through administrative fines and injunctions and civil and criminal proceedings. The Company also is subject to regulations promulgated by the Environmental Protection Agency (the "EPA") and similar state agencies. Although management believes that its operations are in material compliance with current laws and regulations, there can be no assurance that current regulatory requirements will not change or that currently unforeseen environmental incidents will not occur or that contamination or past non-compliance with environmental laws will not be discovered on properties on which the Company has operated. See "Business--Regulation." LACK OF DIVIDENDS The Company intends to retain its earnings to finance the growth and development of its business and does not anticipate paying cash dividends. Any payment of cash dividends in the future will depend upon the Company's financial condition, capital requirements, earnings, restrictions under loan agreements, and other factors the Board of Directors may deem relevant. See "Dividend Policy." POSSIBLE VOLATILITY OF STOCK PRICE Trading volume in the Class A Common Stock has been limited, which causes the price of the Class A Common Stock to be more vulnerable to significant price fluctuations than the stock prices of companies with greater market capitalization. From time to time after the Offering, there may be significant volatility in the 9 market price for the Class A Common Stock. Quarterly operating results of the Company, changes in general conditions in the economy or the transportation industry, or other developments affecting the Company or its competitors could cause the market price of the Class A Common Stock to fluctuate substantially. The equity markets have, on occasion, experienced significant price and volume fluctuations that have affected the market prices for securities and that have been unrelated to the operating performance of individual companies. HOLDING COMPANY FORMATION The Company and its stockholders engaged in several transactions in preparation for the Company's November 17, 1995, initial public offering. They formed a holding company and acquired the related entities, R. D. Simon Trucking, a sole proprietorship previously owned by Richard D. Simon ("R. D. Simon Trucking"), and Freight Sales, Inc., a Utah corporation formerly owned by the adult children of Richard D. Simon ("Freight Sales"), as well as eliminated certain notes payable to stockholders, all in exchange for shares of the Company's Common Stock as described below. The Company issued 753,135 shares of Common Stock to Richard D. Simon effective April 19, 1995, in exchange for all of the R. D. Simon Trucking assets and the assumption of related liabilities. The R. D. Simon Trucking assets consisted of terminals previously leased by the Company at Atlanta, Georgia; Phoenix, Arizona; Fontana, California; Jerome, Idaho; and Salt Lake City, Utah; the 55 acres in Salt Lake City on which the Company plans to relocate in 1997; and four tractors and 22 trailers. The R. D. Simon Trucking assets had a net fair value of $5,401,886 ($8,526,924 less $3,125,038 in related debt). The Salt Lake City properties and Atlanta and Phoenix terminals were valued at the levels contained in independent appraisals prepared by Jerry R. Webber, MAI; Chris L. Bradford & Associates, Inc.; and Sell, Huish & Associates, Inc., respectively, in April 1995. All other real estate and improvements were valued at Mr. Simon's cost from unrelated parties. The revenue equipment was valued at fair market value estimated by Richard D. Simon and Alban B. Lang. The Company accounted for the acquisition of the R. D. Simon Trucking assets as a reorganization of entities under common control and, accordingly, the financial statements reflect the assets at their historical bases. The Company issued 5,577 shares of Common Stock effective April 19, 1995 to each of Kelle A. Simon, Lyn Simon, Sherry L. Simon Bokovoy, and Richard D. Simon, Jr. in exchange for all of the outstanding capital stock of Freight Sales. The Freight Sales stock was valued at the $160,000 estimated fair market value of the three tractors and one parcel of real estate owned by Freight Sales. Freight Sales had no recorded liabilities. The assets were valued at fair market value estimated by Richard D. Simon and Alban B. Lang. The Company also issued 13,245 shares of Common Stock effective April 19, 1995 to each of Kelle A. Simon, Lyn Simon, Sherry L. Simon Bokovoy, Richard D. Simon Jr., and Alban B. Lang in exchange for their $95,000 promissory notes representing the cash value of canceled life insurance policies payable to each of them by the Company. Following the transactions described above, the Company effected a one-for- 3.37 reverse stock split that reduced the number of outstanding shares to 3,550,000. On September 30, 1995, the Company's stockholders contributed on a pro rata basis 272,161 shares of Class A and 977,839 shares of Class B Common Stock to the Company, which reduced the number of outstanding shares to the 2,300,000 outstanding immediately prior to the initial public offering. The Company issued 2,441,968 shares of Class A Common Stock in its initial public offering. DIVIDEND POLICY The Company currently intends to retain its earnings to finance the growth and development of its business and does not anticipate paying cash dividends in the foreseeable future. Any payment of cash dividends in the future will depend upon the Company's financial condition, capital requirements, earnings, restrictions under loan agreements, and other factors the Board of Directors may deem relevant. 10 USE OF PROCEEDS The net proceeds to the Company from the sale of the 1,425,000 shares of Class A Common Stock offered hereby are estimated to be approximately $23.5 million, based upon the $17 5/8 closing price of the Class A Common Stock on January 16, 1997, and after deducting underwriting discounts, commissions, and estimated expenses of the Offering payable by the Company. The Company will not receive any proceeds from the sale of Class A Common Stock by the Selling Stockholders. The net proceeds to the Company from the Offering will be used to purchase new revenue equipment scheduled for delivery during fiscal 1997 and for working capital. Pending application of the net proceeds as described above, the Company intends to invest such proceeds in short-term, investment grade, interest bearing securities. PRICE RANGE OF COMMON STOCK The Company's Class A Common Stock has been traded on the Nasdaq National Market, under the symbol SIMN, since November 17, 1995, the date of the Company's initial public offering. The following table sets forth, for the calendar periods indicated, the range of high and low bid quotations for the Company's Class A Common Stock as reported by Nasdaq from November 17, 1995, to January 10, 1997.
PERIOD HIGH LOW ------ ------- ------- Calendar Year 1995 4th Quarter............................................ $ 9 1/2 $ 8 1/2 Calendar Year 1996 1st Quarter............................................ $11 1/4 $ 9 2nd Quarter............................................ $ 14 $10 1/2 3rd Quarter............................................ $ 15 $12 3/4 4th Quarter............................................ $17 1/4 $13 3/4 Calendar Year 1997 1st Quarter (through January 10th)..................... $18 1/8 $15 1/2
The prices reported reflect interdealer quotations without retail mark-ups, mark-downs, or commissions, and may not represent actual transactions. As of October 31, 1996, the Company had 669 stockholders of record of its common stock. However, the Company believes that many additional holders of common stock are unidentified because a substantial number of the Company's shares are held of record by brokers or dealers for their customers in street names. All of the outstanding Common Stock is, and the shares of Class A Common Stock offered by the Company hereby when issued and paid for will be, fully paid and non-assessable. 11 CAPITALIZATION The following table sets forth (i) the current portion of long-term debt and capitalized leases and (ii) the capitalization of the Company (a) as of December 31, 1996; and (b) as adjusted to give effect to the sale of the 1,425,000 shares of Class A Common Stock offered by the Company hereby (at an assumed offering price of $17 5/8 per share) and application of the estimated net proceeds therefrom as described in "Use of Proceeds." The following table should be read in conjunction with "Management's Discussion and Analysis of Financial Condition and Results of Operations" and the Consolidated Financial Statements and Notes thereto included elsewhere in this Prospectus.
DECEMBER 31, 1996 ------------------- ACTUAL AS ADJUSTED ------- ----------- (IN THOUSANDS) Current portion of long-term debt and capitalized leases.. $ 6,653 $ 6,653 ======= ======= Long-term debt (net of current portion): Secured debt............................................ $17,329 $17,329 Capitalized leases...................................... 14,030 14,030 ------- ------- Total long-term debt.................................... 31,359 31,359 ------- ------- Stockholders' equity(1): Preferred stock, $.01 par value; 5,000,000 shares authorized; none issued and outstanding................ -- Class A Common Stock, $.01 par value; 20,000,000 shares authorized; 2,872,757 shares issued and outstanding; 4,787,257 shares issued and outstanding as adjusted.... 29 48(2) Class B Common Stock, $.01 par value; 5,000,000 shares authorized; 1,872,161 shares issued and outstanding; 1,382,661 shares issued and outstanding as adjusted.... 19 14(2) Additional paid-in capital.............................. 25,302 48,822 Retained earnings....................................... 5,009 5,009 ------- ------- Total stockholders' equity............................ 30,359 53,893 ------- ------- Total capitalization.................................. $61,718 $85,252 ======= =======
- -------- (1) Excludes approximately 398,000 shares of Class A Common Stock reserved for issuance under the Company's Incentive Stock Plan, options to purchase approximately 363,700 of which are currently outstanding. Also excludes 24,000 shares of Class A Common Stock reserved for issuance under the Company's Outside Director Stock Plan, options to purchase 4,000 of which are currently outstanding. See "Management--Incentive Stock Plan" and "Management--Directors' Compensation." (2) Richard D. Simon is selling 10,500 shares of Class A Common Stock and 489,500 shares of Class B Common Stock, which will immediately convert to Class A Common Stock upon the sale. See "Description of Capital Stock." 12 SELECTED CONSOLIDATED FINANCIAL AND OPERATING DATA (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS AND OPERATING DATA) The selected consolidated statement of earnings and balance sheet data as of and for each of the years in the five-year period ended September 30, 1996, are derived from the Company's consolidated financial statements and have been audited by Arthur Andersen LLP, independent public accountants. The selected consolidated statement of earnings and balance sheet data as of and for the three-month periods ended December 31, 1995 and 1996, are unaudited. In the opinion of management, such unaudited financial statements include all adjustments (consisting only of normal recurring accruals) necessary for a fair presentation of the Company's financial condition and results of operations for such periods. The selected operating data set forth below are unaudited. The results for the three-month period ended December 31, 1996, are not necessarily indicative of the results expected for the full year. The selected financial data should be read in conjunction with the Consolidated Financial Statements and Notes thereto included elsewhere in this Prospectus.
THREE MONTHS ENDED YEARS ENDED SEPTEMBER 30, DECEMBER 31, -------------------------------------------- ---------------- 1992 1993 1994 1995 1996 1995 1996 ------- ------- ------- ------- -------- ------- ------- STATEMENT OF EARNINGS DATA: Operating revenue...... $40,823 $57,694 $71,691 $75,218 $101,090 $20,588 $34,166 ------- ------- ------- ------- -------- ------- ------- Operating expenses: Salaries, wages, and benefits............ 14,990 21,990 25,949 28,035 40,015 8,242 13,172 Fuel and fuel taxes.. 8,014 11,629 14,363 14,115 20,359 4,043 6,658 Operating supplies and expenses........ 4,245 6,111 8,978 10,839 13,701 3,166 4,350 Taxes and licenses... 1,625 2,291 2,558 2,756 3,288 700 1,436 Insurance and claims.............. 1,320 1,600 1,995 2,003 2,172 275 626 Communications and utilities........... 579 927 1,274 1,245 1,680 354 530 Depreciation and amortization........ 1,898 4,781 6,857 7,223 5,920 1,728 1,514 Rent................. 3,632 3,422 3,435 2,926 4,794 419 3,447 ------- ------- ------- ------- -------- ------- ------- Total operating expenses.......... 36,303 52,751 65,409 69,142 91,929 18,927 31,733 ------- ------- ------- ------- -------- ------- ------- Operating earnings.......... 4,520 4,943 6,282 6,076 9,161 1,661 2,433 Interest expense and other, net............ 1,276 2,559 3,136 3,527 2,758 806 446 Earnings before provision for income taxes................. 3,244 2,384 3,146 2,549 6,403 855 1,987 Provision for income taxes(1).............. -- -- -- -- 5,454 3,257 751 ------- ------- ------- ------- -------- ------- ------- Net earnings(2)........ $ 3,244 $ 2,384 $ 3,146 $ 2,549 $ 949 $(2,402) $ 1,236 ======= ======= ======= ======= ======== ======= ======= PRO FORMA STATEMENT OF EARNINGS DATA:(2) Earnings before provision for income taxes................. 3,244 2,384 3,146 2,549 6,403 855 1,987 Provision for income taxes................. 1,285 944 1,246 1,010 2,536 339 751 ------- ------- ------- ------- -------- ------- ------- Net earnings........... $ 1,959 $ 1,440 $ 1,900 $ 1,539 $ 3,867 $ 516 $ 1,236 ======= ======= ======= ======= ======== ======= ======= Net earnings per common share.......... $ 0.85 $ 0.63 $ 0.83 $ 0.67 $ 0.88 $ 0.15 $ 0.26 ======= ======= ======= ======= ======== ======= ======= Weighted average common shares outstanding........... 2,300 2,300 2,300 2,300 4,418 3,451 4,743 OPERATING DATA: Operating ratio(3)..... 88.9% 91.4% 91.2% 91.9% 90.9% 91.9% 92.9% Pretax margin.......... 7.9% 4.1% 4.4% 3.4% 6.3% 4.2% 5.8% Average revenue per loaded mile........... $ 1.23 $ 1.23 $ 1.23 $ 1.26 $ 1.24 $ 1.25 $ 1.27 Average revenue per total mile............ $ 1.07 $ 1.07 $ 1.10 $ 1.11 $ 1.10 $ 1.10 $ 1.12 Average revenue per tractor per week...... $ 2,582 $ 2,471 $ 2,489 $ 2,417 $ 2,526 $ 2,513 $ 2,665 Empty miles percentage............ 13.2% 12.6% 10.7% 11.3% 11.7% 11.8% 12.0% Average length of haul in miles.............. 596 677 725 949 984 1,004 979 Weighted average tractors during period................ 304 449 554 598 774 632 990 Tractors at end of period................ 389 523 570 623 940 647 1,011 Trailers at end of period................ 589 745 873 877 1,430 915 1,550 BALANCE SHEET DATA (AT END OF PERIOD): Net property and equipment............. $29,665 $45,409 $49,039 $52,200 $ 56,714 $54,338 $55,836 Total assets........... 34,863 52,601 56,752 61,437 78,223 69,159 78,528 Long-term debt and capitalized leases, including current portion............... 27,217 43,181 44,525 47,903 37,428 35,617 38,013 Stockholders' equity... 4,871 5,736 7,443 9,033 29,103 25,742 30,359
(footnotes are on following page) 13 - -------- (1) The provisions for income tax for fiscal 1996 and the three months ended December 31, 1995, include a one-time, non-cash charge of approximately $3.0 million in recognition of deferred income taxes that resulted from the Company's conversion to a C Corporation on November 17, 1995, the date of its initial public offering. (2) The Company was treated as an S Corporation for federal and state income tax purposes from October 1, 1996, to November 16, 1995. As a result, the Company's taxable earnings for such period were taxed for federal and state income tax purposes directly to the Company's then-existing stockholders. The pro forma statement of earnings data give effect to an adjustment for a provision for federal and state income taxes as if the Company had been treated as a C Corporation during all periods reported. The pro forma statement of earnings data do not give effect to the one- time, non-cash charge of approximately $3.0 million in recognition of deferred income taxes that resulted from the Company's conversion to a C Corporation on November 17, 1995, the date of its initial public offering. See Note 3 to Consolidated Financial Statements. (3) Operating expenses as a percentage of revenue. The Company's operating ratio is affected by the method of equipment financing. See "Management's Discussion and Analysis of Financial Conditions and Results of Operations." 14 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS OVERVIEW Founded by Richard D. Simon in 1955 with a single truck, Simon Transportation today provides nationwide, predominantly temperature-controlled truckload transportation for numerous major shippers in the food industry. In recent years, much of the Company's growth has resulted from earning core carrier status with major shippers and meeting the demands of these shippers for additional equipment. The Company has grown to $101.1 million in revenue for its fiscal year ended September 30, 1996, from $40.8 million in revenue for fiscal 1992, a compounded annual growth rate of 25.5%. During the same period, operating earnings more than doubled to $9.2 million from $4.5 million. During fiscal years 1994 and 1995, the Company financed most of its tractors and trailers with debt and capitalized leases. In the 1996 fiscal year, the Company financed most of its revenue equipment with operating leases rather than borrowing. Financing equipment with operating leases increases the Company's operating ratio because the implied interest component of the lease payments is reflected as an "above-the-line" operating expense rather than interest expense. The Company's operating ratio may fluctuate from time-to- time based upon the method of equipment financing. The Company operated as an S Corporation from October 1, 1990, to November 16, 1995. As a result, the Company's net taxable earnings were taxed directly to the Company's existing stockholders rather than to the Company. The pro forma statement of earnings data included in the "Selected Consolidated Financial and Operating Data" set forth the Company's net earnings for such periods presented as if the Company had been subject to federal and state income taxes. In addition to the ongoing income tax effect, the termination of the Company's S Corporation status resulted in a one-time, non-cash charge of approximately $3.0 million during the 1996 fiscal year in recognition of deferred income taxes. RESULTS OF OPERATIONS The following table sets forth the percentage relationship of certain items to operating revenue for the periods indicated:
THREE MONTHS FISCAL YEARS ENDED ENDED SEPTEMBER 30, DECEMBER 31, ---------------------- -------------- 1994 1995 1996 1995 1996 ------ ------ ------ ------ ------ Operating Revenue..................... 100.0% 100.0% 100.0% 100.0% 100.0% Operating Expenses: Salaries, wages, and benefits....... 36.2 37.3 39.6 40.0 38.6 Fuel and fuel taxes................. 20.0 18.8 20.1 19.6 19.5 Operating supplies and expenses..... 12.4 14.4 13.6 15.4 12.7 Taxes and licenses.................. 3.6 3.6 3.3 3.4 4.2 Insurance and claims................ 2.8 2.7 2.1 1.3 1.8 Communications and utilities........ 1.8 1.6 1.6 1.7 1.6 Depreciation and amortization....... 9.6 9.6 5.9 8.4 4.4 Rent................................ 4.8 3.9 4.7 2.0 10.1 ------ ------ ------ ------ ------ Total operating expenses.......... 91.2 91.9 90.9 91.9 92.9 ------ ------ ------ ------ ------ Operating earnings.................... 8.8 8.1 9.1 8.1 7.1 Interest expense and other, net....... (4.4) (4.7) (2.8) (3.9) (1.3) ------ ------ ------ ------ ------ Earnings before provision for income taxes................................ 4.4 3.4 6.3 4.2 5.8 Pro forma provision for income taxes.. (1.7) (1.4) (2.5) (1.7) (2.2) ------ ------ ------ ------ ------ Pro forma net earnings................ 2.7% 2.0% 3.8% 2.5% 3.6% ====== ====== ====== ====== ======
15 Comparison of Three Months Ended December 31, 1996 with Three Months Ended December 31, 1995. Operating revenue increased 66.0%, to $34.2 million for the three months ended December 31, 1996, from $20.6 million for the corresponding period of 1995. The increase in operating revenue was primarily attributable to a 56.7% increase in the weighted average number of tractors, to 990 in the 1996 period from 632 in the 1995 period, and a 6.1% increase in average revenue per tractor per week, to $2,665 in the 1996 period from $2,513 in the 1995 period. These increases were partially offset by an increase in empty miles percentage to 12.0% from 11.8%. Salaries, wages, and benefits decreased to 38.6% of revenue for the three months ended December 31, 1996, from 40.0% for the corresponding period of 1995. The change was attributable to a leveling of the fixed costs associated with salaries paid to shop and administrative personnel. Salaries and wages for administrative personnel did not increase proportionately with revenue. Fuel and fuel taxes decreased to 19.5% of revenue for the three months ended December 31, 1996, from 19.6% for the corresponding period of 1995, principally as a result of an increase in the overall fuel efficiency of the Company's newer tractor fleet and fuel surcharges implemented with a substantial number of customers during the 1996 period. These savings were partially offset by higher fuel prices in the 1996 period as compared with the 1995 period. Operating supplies and expenses decreased to 12.7% of revenue for the three months ended December 31, 1996, from 15.4% for the corresponding period of 1995, primarily as a result of lower parts and tire replacement costs, outside repairs, and maintenance expense associated with a decrease in the average age of the Company's tractor fleet. Most of the Company's tractors are covered by three-year, 500,000-mile warranties. Taxes and licenses increased to 4.2% of revenue for the three months ended December 31, 1996, from 3.4% for the corresponding period of 1995, primarily as a result of amortizing the remaining portion of prepaid licensing fees for equipment disposed of prior to the end of the licensing year. Insurance and claims increased to 1.8% of revenue for the three months ended December 31, 1996, from 1.3% for the corresponding period of 1995 because of increased claims expense. Communications and utilities decreased to 1.6% of revenue for the three months ended December 31, 1996, from 1.7% for the corresponding period of 1995, primarily as a result of reduced rates for the Company's long-distance service. Depreciation and amortization (adjusted for the net gain on the sale of property and equipment) decreased to 4.4% of revenue for the three months ended December 31, 1996, from 8.4% for the corresponding period of 1995. The decrease was primarily attributable to the use of operating leases rather than capitalized leases to acquire new equipment during the period. The Company realized a net gain of $156,931 on the sale of property and revenue equipment during the 1996 period compared with a $463,500 net gain during the 1995 period. Rent increased to 10.1% of revenue for the three months ended December 31, 1996, from 2.0% for the corresponding period of 1995 as the Company replaced equipment that had been financed under capitalized lease arrangements with equipment financed under operating leases. The Company has utilized operating leases in the most recent quarter because of more favorable terms. If the Company continues to use operating lease financing, its operating ratio may be affected in future periods because the implied financing costs of such equipment are included as operating expenses instead of interest expense. As a result of the foregoing, the Company's operating ratio increased to 92.9% for the three months ended December 31, 1996, from 91.9% for the corresponding period of 1995. Net interest expense decreased to 1.3% of revenue for the three months ended December 31, 1996, from 3.9% for the corresponding period in 1995 as a result of lower average debt and capitalized lease balances and a decrease in the Company's average interest rate in the 1996 period compared with the 1995 period. 16 The Company's effective combined federal and state income tax rate for the three months ended December 31, 1996, was 37.8%, compared with an estimated combined federal and state income tax rate of 39.6% used for the three months ended December 31, 1995. As a result of the factors described above, net earnings increased to $1.2 million (3.6% of revenue) for the three months ended December 31, 1996, compared with pro forma net earnings of $516,000 (2.5% of revenue) for the corresponding period of 1995. Comparison of fiscal year ended September 30, 1996, with fiscal year ended September 30, 1995. Operating revenue increased 34.4%, to $101.1 million during the 1996 fiscal year from $75.2 million during the 1995 fiscal year. The increase in revenue was primarily attributable to a 29.4% increase in the weighted average number of tractors, to 774 during the 1996 fiscal year from 598 during the 1995 fiscal year and an increase in the average revenue per tractor per week to $2,526 during the 1996 fiscal year from $2,417 during the 1995 fiscal year. These increases were partially offset by a decrease in the Company's average revenue per loaded mile to $1.24 during the 1996 fiscal year from $1.26 during the 1995 fiscal year, and an increase in empty miles percentage to 11.7% during the 1996 fiscal year from 11.3% during the 1995 fiscal year. Salaries, wages, and benefits increased to 39.6% of revenue during the 1996 fiscal year from 37.3% during the 1995 fiscal year. The change was attributable to the full effect of an increase in driver base pay implemented during the 1995 fiscal year; the improvement of health insurance coverage to attract and retain qualified drivers and other personnel; an increase in the number of active participants in the 401(k) plan; and an increase in administrative personnel. The additional cost of these items was partially offset by reduced workers' compensation premiums and a reduction in workers' compensation claims. Fuel and fuel taxes increased to 20.1% of revenue during the 1996 fiscal year from 18.8% during the 1995 fiscal year as a result of an increase in fuel prices. The increase in fuel prices was partially offset by an overall increase in the fuel efficiency of the Company's fleet. As of September 30, 1996, the Company had entered into fuel surcharge agreements with approximately 45% of its customers. These customers represent approximately 70% of the Company's revenue. The fuel surcharges are adjusted weekly based on the national weekly average price of diesel fuel published by the Department of Energy. Operating supplies and expenses decreased to 13.6% of revenue during the 1996 fiscal year, from 14.4% during the 1995 fiscal year, primarily as a result of decreased parts costs, outside repairs, and maintenance expense associated with a decrease in the average age of the Company's tractor fleet. These savings were partially offset by retaining certain older tractors that had been scheduled for trade or sale in order to meet customer demand for more equipment. The Company upgraded its tractor fleet in fiscal year 1996 and reduced the average age of its fleet at September 30, 1996, to approximately 13 months from 30 months at September 30, 1995. Most of the Company's tractor fleet is now covered by three-year, 500,000-mile warranties. Taxes and licenses decreased to 3.3% of revenue during the 1996 fiscal year from 3.6% during the 1995 fiscal year primarily as a result of greater efficiency in licensing new tractors being added to the fleet. Insurance and claims decreased to 2.1% of revenue during the 1996 fiscal year from 2.7% during the 1995 fiscal year because of reduced insurance premiums and claims. Communications and utilities remained constant at 1.6% of revenue during the 1996 and 1995 fiscal years. Depreciation and amortization (adjusted for the net gain on sale of equipment) decreased to 5.9% of revenue during the 1996 fiscal year from 9.6% during the 1995 fiscal year. Depreciation and amortization (unadjusted for the net gain on sale of equipment) decreased to 8.3% of revenue ($8.4 million) during the 1996 fiscal year from 10.8% of revenue ($8.1 million) during the 1995 fiscal year as a result of a decrease in the percentage of the Company's revenue equipment that was owned or acquired under capitalized leases. A portion of the decrease in depreciation was a result of a $2.4 million net gain on the sale of revenue equipment during the 1996 fiscal year 17 compared with an $885,000 net gain during the 1995 fiscal year. Rent increased to 4.7% of revenue during the 1996 fiscal year from 3.9% during the 1995 fiscal year as the Company increased its percentage of revenue equipment under operating leases. As a result of the foregoing, the Company's operating ratio decreased to 90.9% during the 1996 fiscal year from 91.9% during the 1995 fiscal year. Interest expense and other, net decreased to 2.8% of revenue during the 1996 fiscal year from 4.7% during the 1995 fiscal year. This resulted from application of $17.2 million in net proceeds from the Company's initial public offering to decrease debt and capitalized lease balances, a decrease in the Company's average interest rate in the 1996 fiscal year compared with the 1995 fiscal year, and an increase in the percentage of the Company's tractor and trailer fleets being obtained through operating leases. The pro forma income tax provision was computed using an estimated combined federal and state income tax rate of 39.6% for both fiscal 1996 and fiscal 1995. As a result of the factors described above, pro forma net earnings increased to $3.9 million (3.8% of revenue) during the 1996 fiscal year from $1.5 million (2.0% of revenue) during the 1995 fiscal year. Comparison of fiscal year ended September 30, 1995, with fiscal year ended September 30, 1994 Operating revenue increased 4.9%, to $75.2 million during the 1995 fiscal year from $71.7 million during the 1994 fiscal year, as management slowed the addition of new revenue equipment to avoid increasing the Company's level of long-term debt and lease obligations. The weighted average number of tractors increased 7.9% to 598 during the 1995 fiscal year from 554 during the 1994 fiscal year. The Company's average revenue per loaded mile increased to $1.26 during the 1995 fiscal year from $1.23 during the 1994 fiscal year, but this was partially offset by an increase in empty miles percentage to 11.3% during the 1995 fiscal year from 10.7% during the 1994 fiscal year. Average revenue per tractor per week declined to $2,417 during the 1995 fiscal year from $2,489 during the 1994 fiscal year. Salaries, wages, and benefits increased to 37.3% of revenue during the 1995 fiscal year from 36.2% during the 1994 fiscal year. The change was attributable to an increase in driver base pay; the implementation of a driver bonus program; the improvement of health insurance coverage to attract and retain qualified drivers and other personnel; an increase in the number of active participants in the 401(k) plan; and an increase in administrative personnel. The additional cost of these items was partially offset by a one- time rebate from the previous workers' compensation insurer, reduced workers' compensation premiums, and a reduction in workers' compensation claims. Fuel and fuel taxes decreased to 18.8% of revenue during the 1995 fiscal year from 20.0% during the 1994 fiscal year as a result of a decrease in fuel prices under a fuel management program implemented in January 1995 and an overall increase in the fuel efficiency of the Company's fleet. Operating supplies and expenses increased to 14.4% of revenue during the 1995 fiscal year, from 12.4% during the 1994 fiscal year, primarily as a result of increased parts and tire replacement costs, outside repairs, and maintenance expense associated with the delay in trading and adding new revenue equipment. The average age of the Company's tractor fleet at September 30, 1995, was 30 months, and most repairs of such tractors were no longer covered by manufacturers' warranties. The Company also experienced an increase in loading and unloading, pallet, and toll costs associated with additional shipper requirements. Taxes and licenses and insurance and claims both remained essentially constant during the 1995 and 1994 fiscal years. Communications and utilities decreased to 1.6% of revenue during the 1995 fiscal year from 1.8% during the 1994 fiscal year as a result of a one-time, negotiated credit with the Company's long distance provider for 18 expenses incurred during the 1995 fiscal year. The Company also negotiated a reduction of approximately 35% in monthly in long-distance rates effective October 1995. Depreciation and amortization (adjusted for the net gain on sale of equipment) remained unchanged at 9.6% of revenue during the 1995 and 1994 fiscal years. Depreciation and amortization (unadjusted for the net gain on sale of equipment) increased to $8.1 million (10.8% of revenue) during the 1995 fiscal year from $7.1 million (9.9% of revenue) during the 1994 fiscal year as a result of an increase in the percentage of the Company's revenue equipment that was owned or acquired under capitalized leases. The increase in depreciation was offset by an $885,000 net gain on the sale of revenue equipment during the 1995 fiscal year compared with a $229,000 net gain during the 1994 fiscal year. Rent decreased to 3.9% of revenue during the 1995 fiscal year from 4.8% during the 1994 fiscal year as the Company reduced its percentage of revenue equipment under operating leases. As a result of the foregoing, the Company's operating ratio increased to 91.9% during the 1995 fiscal year from 91.2% during the 1994 fiscal year. Interest expense and other, net increased to 4.7% of revenue during the 1995 fiscal year from 4.4% during the 1994 fiscal year as a result of higher average interest rates and an increase in the percentage of the Company's revenue equipment that was owned or acquired under capitalized leases. The pro forma income tax provision was computed using an estimated combined federal and state income tax rate of 39.6% for both fiscal 1996 and fiscal 1995. As a result of the factors described above, pro forma net earnings decreased to $1.5 million (2.0% of revenue) during the 1995 fiscal year from $1.9 million (2.7% of revenue) during the 1994 fiscal year. LIQUIDITY AND CAPITAL RESOURCES The growth of the Company's business has required significant investment in new revenue equipment that the Company has financed with borrowings under installment notes payable to commercial lending institutions and equipment manufacturers, equipment leases from third-party lessors, borrowings under its line of credit, funds provided by its initial public offering in November 1995, and cash flow from operations. The Company's primary sources of liquidity currently are funds provided by operations and borrowings and leases with financial institutions and equipment manufacturers. Net cash provided by (used in) operating activities was $10.4 million, $8.3 million, and $7.0 million for the fiscal years ended September 30, 1994, 1995, and 1996, respectively, and ($345,000) for the three months ended December 31, 1996. The cash deficit for the three months ended December 31, 1996, was primarily caused by the payment of annual income taxes and annual revenue equipment licensing fees. The Company's principal use of cash from operations is to service debt incurred to purchase new revenue equipment and internally finance accounts receivable associated with growth in the business. Customer accounts receivable increased $753,000, $478,000, and $5.9 million for the fiscal years ended September 30, 1994, 1995, and 1996, respectively, and decreased $93,000 for the three months ended December 31, 1996. The average age of the Company's accounts receivable was 36, 36, and 39 days for the fiscal years ended September 30, 1994, 1995, and 1996, respectively, and 35 days for the three months ended December 31, 1996. Net cash (used in) provided by investing activities was ($6.1 million), $1.3 million, and ($4.6 million) for the fiscal years ended September 30, 1994, 1995, and 1996, respectively, and $1.7 million for the three months ended December 31, 1996. The Company expects capital expenditures (primarily for revenue equipment, satellite communications units, and the construction of a new main terminal and headquarters facility), net of revenue equipment trade- ins, to be approximately $21.0 million in 1997. The Company's projected capital expenditures will be funded with borrowings or capitalized or operating leases, cash flows from operations, and the Company's net proceeds of the Offering. The total cost of the Company's new primary terminal, which will include maintenance, driver, and office facilities, is estimated at approximately $16.0 million. Substantially all of 19 this amount is expected to be incurred during fiscal 1997. Following completion of the new facility, the Company intends to sell its existing headquarters facility, which had an appraised value of approximately $3.4 million in May 1995. Net cash (used in) provided by financing activities of ($4.5 million), ($9.2 million), and $2.9 million for the fiscal years ended September 30, 1994, 1995, and 1996, respectively, and $604,000 for the three months ended December 31, 1996, consisted primarily of approximately $19.7 million in net proceeds from the Company's November 1995 initial public offering (in fiscal 1996), net payments of $3.0 million, $10.2 million, $11.9 million, and $2.0 million of principal under the Company's long-term debt and capitalized lease agreements and net (borrowings) payments of ($9,000), ($2.6 million), $4.3 million, and $0 under the Company's line of credit. In addition, prior to the Company's termination of its S Corporation status, it paid dividends to its stockholders of $1.4 million, $1.6 million, and $605,000 for the fiscal years ended September 30, 1994, 1995, and 1996, respectively, and $0 during the three months ended December 31, 1996. The maximum amount committed under the Company's line of credit at December 31, 1996, was $5.0 million and no borrowings were outstanding. The interest rate on the line of credit is one-half percent (.5%) above the 30-day London Interbank Offered Rate ("LIBOR") in effect from time-to-time. At December 31, 1996, the Company had outstanding long-term debt and capitalized lease obligations (including current portions) consisting of approximately $38.0 million, most of which comprised obligations for the purchase of revenue equipment. See Notes 4 and 6 to Consolidated Financial Statements. Although the Company from time-to-time has experienced a working capital deficit common to many truckload carriers that have expanded by financing revenue equipment purchases, management believes its working capital deficits have had little impact upon liquidity. When the purchase of revenue equipment is financed through borrowing or capitalized lease obligations, a portion of the indebtedness is categorized as a current liability, although the revenue equipment is classified as a long-term asset. Consequently, each purchase of financed revenue equipment decreases working capital. The Company's working capital at September 30, 1996 and December 31, 1996, was $6.7 million and $8.8 million, respectively. The Company's working capital deficits amounted to $7.0 million and $16.7 million at September 30, 1994 and 1995, respectively. Management believes that available borrowings under the line of credit, future borrowings under installment notes payable or lease arrangements for revenue equipment, cash flows generated from operations, and the Company's net proceeds of the Offering will allow the Company to continue to meet its working capital requirements, anticipated capital expenditures, and obligations under debt and capitalized and operating leases at least through calendar year 1997. INFLATION AND FUEL COSTS With the exception of occasional fuel price increases, inflation has had a minimal effect upon the Company's profitability in recent years. In the second half of fiscal 1996, a sharp increase in fuel prices occurred nationwide as a result of a perceived shortage in supply. The Company historically has been able to pass through most increases in fuel prices and taxes to customers in the form of higher rates. As of September 30, 1996, the Company had entered into fuel surcharge agreements with approximately 45% of its customers. These customers represented approximately 70% of the Company's revenue for the year ended September 30, 1996. The fuel surcharges are adjusted weekly based on the national weekly average price of diesel fuel published by the Department of Energy. Management expects to maintain the fuel surcharges or seek rate increases if fuel prices remain elevated. Most of the Company's operating expenses are inflation-sensitive, with inflation generally producing increased costs of operation. The Company expects that inflation will affect its costs no more than it affects those of other truckload carriers. SEASONALITY The Company experiences some seasonal fluctuations in freight volume, as shipments historically have decreased during the first calendar quarter. In addition, the Company's operating expenses historically have been higher in the winter months due to decreased fuel efficiency and increased maintenance costs in colder weather. 20 SELECTED QUARTERLY FINANCIAL DATA The following table sets forth, for the periods indicated, certain consolidated quarterly financial information of the Company. This information is derived from unaudited consolidated financial statements which include, in the opinion of management, all normal recurring adjustments which management considers necessary for the fair presentation of the results for such periods. This information should be read in conjunction with the Company's Consolidated Financial Statements and the Notes thereto included elsewhere in this Prospectus. The results for any quarter are not necessarily indicative of results for any future period. CONSOLIDATED QUARTERLY FINANCIAL INFORMATION (UNAUDITED) (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
FISCAL 1995 FISCAL 1996 FISCAL 1997 ------------------------------- -------------------------------- ----------- FIRST SECOND THIRD FOURTH FIRST SECOND THIRD FOURTH FIRST QUARTER QUARTER QUARTER QUARTER QUARTER QUARTER QUARTER QUARTER QUARTER ------- ------- ------- ------- ------- ------- ------- ------- ----------- STATEMENT OF EARNINGS DATA: Operating revenue....... $17,851 $18,539 $19,288 $19,540 $20,588 $22,208 $27,225 $31,068 $34,166 Operating earnings...... 1,491 1,440 1,460 1,684 1,661 2,235 2,568 2,697 2,433 Earnings before provision for income taxes.................. 647 529 545 828 855 1,596 1,812 2,140 1,987 Provision for income taxes(1)............... -- -- -- -- 3,257 632 717 848 751 Net earnings(1)......... 647 529 545 828 (2,402) 964 1,095 1,292 1,236 PRO FORMA INFORMATION:(1) Earnings before provision for income taxes.................. 647 529 545 828 855 1,596 1,812 2,140 1,987 Provision for income taxes.................. 256 209 216 328 339 632 717 848 751 Net earnings............ 391 320 329 500 516 964 1,095 1,292 1,236 Net earnings per common share.................. $ 0.17 $ 0.14 $ 0.14 $ 0.22 $ 0.15 $ 0.20 $ 0.23 $ 0.27 $ 0.26 Weighted average common shares................. 2,300 2,300 2,300 2,300 3,451 4,742 4,742 4,742 4,743
- -------- (/1/The)Company was treated as an S Corporation for federal and state income tax purposes from October 1, 1996, to November 16, 1995. As a result, the Company's taxable earnings for such period were taxed for federal and state income tax purposes directly to the Company's then-existing stockholders. The pro forma data give effect to an adjustment for a provision for federal and state income taxes as if the Company had been treated as a C Corporation during all periods reported, and do not give effect to the one-time, non-cash charge of approximately $3.0 million in recognition of deferred income taxes that resulted from the Company's conversion to a C Corporation on November 17, 1995, the date of its initial public offering. See Note 3 to Consolidated Financial Statements. INDUSTRY OVERVIEW Simon Transportation operates exclusively in the truckload segment of the trucking industry. Truckload carriers transport full trailer loads of freight directly from origin to destination without the delays and expense of en-route handling and multiple shipper load consolidation that characterize less-than- truckload traffic. The for-hire truckload market is generally estimated at approximately $50 billion revenue per year. Distinct shipper needs have caused a variety of specialized market segments to develop within the truckload industry based upon equipment type, service criteria, length of haul, and geographic region. The Company specializes in the temperature-controlled truckload segment and operates primarily refrigerated trailers to transport food products and other goods that are temperature sensitive. The for-hire temperature-controlled segment is estimated at approximately $4 billion in annual revenue. Although the five largest temperature-controlled carriers generated more than 25% of the for-hire revenue in 1995, the remaining market is divided among several thousand carriers. The truckload industry is consolidating as shippers establish service-based, long-term relationships with a limited group of core carriers. These partnerships are designed to ensure higher quality, more consistent service for the shipper, and greater equipment utilization and more predictable revenue for the carrier. Shippers select core carriers based upon performance criteria such as equipment availability, time-sensitive and damage-free 21 product deliveries, well-trained drivers, modern equipment, in-transit communication and load tracking, electronic data interchange, strong safety record, accurate billing, quick settlement of claims, and adequate insurance. The availability of such services and a desire to conserve capital resources for their primary businesses have encouraged many shippers to outsource to core carriers, including dedicated fleets. The trend toward use of core carriers offers significant growth opportunities for financially stable carriers and raises entry barriers for potential industry competitors. The Company focuses on the temperature-controlled market to take advantage of more than 30 years of experience in transporting temperature-sensitive commodities. Management believes that serving food industry shippers is attractive because their products are generally less affected by economic cycles, and temperature-controlled trailers offer the flexibility of hauling both temperature-sensitive and nontemperature-sensitive food products. Management estimates that the cost of operating a fleet of temperature- controlled trailers exceeds the cost of owning and operating a dry van fleet by approximately $.04 per mile. The additional expense is attributable to higher depreciation and interest expense resulting from the higher cost of a refrigerated trailer, which is approximately $39,000, compared with approximately $19,000 for a dry van, and the fuel and maintenance costs of operating the refrigeration unit. Management believes that higher revenue per mile and typically lower trailer to tractor ratio for refrigerated carriers compensates for these additional expenses. BUSINESS THE COMPANY Simon Transportation is a rapidly-growing truckload carrier that specializes in temperature-controlled transportation services for major shippers in the food industry. Richard D. Simon founded the Company with one truck in 1955. Today Simon Transportation operates nationwide, in eight Canadian provinces, and in portions of Mexico from its strategically located headquarters in Salt Lake City, Utah, and terminals in Phoenix, Arizona; Fontana, California; Atlanta, Georgia; Portland, Oregon; and Katy, Texas. The Company has grown as a result of its reputation for on-time delivery of undamaged freight and its willingness to meet shipper needs by opening additional terminals and providing dedicated equipment and personnel for continuous, round-trip movements. This customer focus has resulted in revenue growth to $101.1 million in fiscal 1996 from $40.8 million in fiscal 1992, a compounded annual growth rate of 25.5%. During the same period, operating earnings more than doubled to $9.2 million from $4.5 million. STRATEGY The Company has grown rapidly in recent years by adding revenue equipment to meet the service demands of new and existing customers and expanding core carrier partnerships. Management plans to continue the Company's growth by capitalizing on industry trends among shippers to place increased reliance on a smaller number of financially stable, service-oriented core carriers, outsource transportation requirements formerly provided by private fleets, and seek dedicated service. Management believes that large shippers with nationwide, temperature-controlled transportation needs will continue to request expanded service and that the proceeds to the Company from the Offering will enable the Company to add revenue equipment to meet customer demand. The key elements of the Company's strategy are: Food Industry Focus. Simon Transportation focuses on providing specialized service to sophisticated high-volume customers in the food industry such as Nestle, Kraft, M&M Mars, ConAgra, Albertson's, Pillsbury, Campbell's Soup, and Coca-Cola Foods. These customers seek nationwide transportation partners that understand the specialized needs of food industry shippers and offer the late- model equipment, experienced personnel, advanced technology, and geographic coverage to provide "continuous movement" of temperature-controlled and dry loads from processing or packaging plants to distribution centers and other destinations. Management believes the food industry is an attractive niche because it is generally less affected by economic cycles and many shippers require time-sensitive and specialized service that justifies a higher rate per mile. 22 Core Carrier Partnerships. Simon Transportation has grown rapidly by establishing core carrier partnerships with high-volume, service sensitive shippers. Core carriers provide customers with consistent equipment availability and premium service such as time-definite pick-up and delivery, express time-in-transit, multiple delivery stops, and real-time access to load information through satellite-based tracking and communication systems and EDI capability. The Company also meets specialized customer requests for access to terminal facilities, stationing employees at customer locations, and dedicating equipment to specific traffic lanes. Management believes major shippers favor their core carrier "partners" during periods of reduced demand for truck service, and that the trend among major shippers to reduce the number of carriers used in favor of core carriers will continue. Dedicated Fleets. Simon Transportation emphasizes dedicated fleet operations in which it offers round trip or continuous movement service to a shipper (or a shipper and one or more of its suppliers) by dedicating certain tractors and trailers exclusively to that shipper's needs. Dedicated service is desirable because the customers typically pay a round-trip rate per mile assuming that the truck will return empty and cover all loading, unloading, and pallet costs. The Company frequently is able to further enhance revenue per mile by locating a profitable load to cover unloaded segments. In addition, drivers prefer the predictable runs and priority treatment at shipping and receiving locations. Management intends to aggressively grow its dedicated fleet operations and expects this service niche to expand as shippers outsource transportation needs presently served by private carriage. Modern Fleet. Simon Transportation intends to maintain a modern tractor fleet and utilize the 53-foot temperature-controlled trailer as its standard. Reliable, late-model equipment promotes customer service and driver recruitment and retention by minimizing the delays caused by breakdowns and excessive maintenance. In addition, management believes that a practice of replacing tractors while under warranty will reduce expenses and permit the Company to take advantage of improvements in fuel economy and equipment technology. Technology. Simon Transportation is an industry leader in technology and the Company's entire fleet has been equipped with Qualcomm systems since 1992. Simon Transportation was the thirteenth carrier in the nation to install the units in 100% of its tractors. This system and EDI capability improve customer service and operating efficiency by offering the Company and customers real time access to load locations and advance warning of potential delivery delays. The Company also utilizes document imaging and load optimization systems. Management believes shippers will continue to demand advanced technology of their core carriers and plans to respond to such requirements. OPERATIONS The Company conducts a centralized dispatch and customer service operation at its Salt Lake City headquarters to offer the precision scheduling required by its customers. The operations center features a fully-integrated, computerized network of dispatch, customer service, and driver liaison personnel. Customer service representatives solicit and accept freight, quote rates, and serve as the primary contact with customers. After accepting a load, customer service representatives transfer the pick-up and delivery information to the computer screen of the appropriate load planner, who assigns the load to an available driver based upon the proximity of the trucks, scheduled "home time," and available hours-in-service. Dispatchers then use the Qualcomm satellite-based tracking and communication system to locate the position and availability status of equipment and notify the driver of pick-up and delivery requirements, route and fueling instructions, and other information. Upon the assignment of a load, the Company's proprietary software calculates the projected travel time from origin to destination and uses satellite position updates and driver communications to provide load progress reports at 30-minute intervals. The system automatically advises the appropriate dispatcher and customer service representative if a load is behind schedule, and customers are able to use EDI to access information about load locations at any time. Management believes that these satellite and computer systems are crucial to satisfying the stringent service standards, such as 30- minute pick-up and delivery "windows", demanded by shippers of their core carriers. 23 Management measures the Company's efficiency through miles per tractor, empty miles percentage, revenue per mile, and revenue per tractor. Fleet productivity is tracked daily in the operations center, with actual progress matched against a monthly goal. All operations personnel have access to these statistics on a real time basis, and all participate in a cash bonus program for achieving certain fleetwide levels of miles per tractor per month, driver turnover, and revenue per mile. CUSTOMERS AND MARKETING The Company's sales and marketing function is led by senior management and other sales professionals based in its Salt Lake City headquarters and near key customers. These sales personnel aggressively market Simon Transportation to food industry shippers as a customer-oriented provider of dependable, on- time service. The Company targets customers that seek financially stable, long-term transportation partners offering dependable equipment, satellite and EDI technologies, and premium service. This customer service philosophy has contributed to continuing demands for added equipment to expand service for existing shippers and establishing core carrier relationships with Nestle, Kraft, M&M Mars, ConAgra, Albertson's, Pillsbury, Campbell's Soup, Coca-Cola Foods, and other major customers. Management intends to continue developing business with existing customers and attempting to add new core carrier relationships. The Company's top 5, 10, and 25 customers accounted for 45.7%, 60.1%, and 75.2% of revenue, respectively, during fiscal 1996, with Nestle (including Nestle's Stouffer's and Friskie's units) accounting for 18.7% of revenue. Simon Transportation provides service to and from customer locations throughout the United States, in several Canadian provinces and in portions of Mexico. The Company's operations are strongest in the western United States and between points in the West to and from points in the East and Southeast. In addition to traditional for-hire service, management emphasizes the marketing of dedicated fleet and regional distribution services. Dedicated fleets generally receive compensation for all miles, and regional operations provide a stronger presence for driver recruiting. Management believes that these services offer consistent equipment utilization and predictable home- time for drivers. The Company has written contracts with substantially all of its customers. These contracts generally specify service standards and rates, eliminating the need for negotiating the rate for individual shipments. Although a contract typically runs for a specified term of at least one year, it generally may be terminated by either party upon 30 days' notice. TECHNOLOGY The Company uses computer and satellite technology to enhance efficiency and customer service in all aspects of its operations, and management believes the Company is among the industry leaders in applying advanced technology to improve transportation service. The Qualcomm OmniTRACS(TM) satellite-based tracking and communication system provides hourly updates of the position of each tractor and permits real-time communication between operations personnel and every driver. As a result, dispatchers relay pick-up and delivery times, weather and road information, route and fueling directions, and other instructions without waiting for a driver to stop and call the Company. The Company's entire fleet has been equipped with the Qualcomm systems since 1992. Simon Transportation was the thirteenth carrier in the nation to install the units in 100% of its tractors. The Company's proprietary software also monitors load progress against projected delivery time every half-hour and warns the appropriate dispatcher and customer service representative if a load is behind schedule. This software also facilitates early routing toward each driver's home base by signaling dispatchers several days in advance of drivers' requested home-time dates. The Company's EDI capability permits customers to communicate directly via computer link to tender loads, receive load confirmation, check load status, and receive billing information. The Company's largest customers require EDI service from their core carriers, and more than 50% of the Company's revenue is generated by customers that actively use EDI. EDI not only improves customer service and communication, but also benefits the Company's cash flow through accelerated receivable collection. The Company further enhances 24 its operations through its recently installed document imaging technology, which provides customer service representatives and other personnel (all of whom have computers) real-time access to freight bills, supplier invoices, and other information. Management believes that advanced technology will be required by an increasing number of large shippers as they reduce the number of carriers they use in favor of core carriers. The Company has designed a load optimization software program that allows customer service representatives to quote rates by automatically computing the range of acceptable rates between any two points, based upon the rates for all Simon Transportation loads in and out of the applicable region during the past year and the need for pallets, multiple stops, and other additional charges. The system then prioritizes the loads and identifies the optimal tractor to accept a load, based upon location, empty miles required, remaining driver hours-in-service, maintenance scheduling, driver home time, and other factors. The Company's maintenance shops are fully computerized and paperless, and all maintenance, repair, and inspection records for each vehicle are instantly accessible. Drivers are able to monitor maintenance progress on computer screens located in the driver lounge. REVENUE EQUIPMENT Simon Transportation's equipment strategy is to operate modern tractors and trailers that help reduce parts, maintenance, and fuel costs, promote the reliable service customers demand from core carriers, and attract and retain drivers. At December 31, 1996, the Company operated 1,011 conventional tractors (engine-forward) equipped with electronic engines and Eaton transmissions, most of which are covered by three-year, 500,000- mile engine warranties and lifetime transmission warranties. Most of the tractors also are equipped with the "condo" sleeper cabs preferred by drivers. The Company has scheduled deliveries that would increase its tractor fleet by approximately 360 tractors during fiscal 1997, with options to purchase an additional 100 units. At December 31, 1996, the Company operated 1,442 temperature-controlled trailers, 460 of which were 48J x 102KK models, and 982 were 53J x 102KK models. Management believes that the added capacity of 53-foot models compared with 48-foot models offers a marketing advantage. The Company anticipates adding approximately 500 53-foot trailers and replacing approximately 200 48- foot models in fiscal 1997. The Company also operated 108 insulated dry vans used in its dedicated fleet operations. Nearly all of the Company's temperature-controlled trailers are equipped with ThermoKing refrigeration units. ThermoKing has developed "screw compressor" technology capable of maintaining a "DF" (deep freeze) rating that previously was not offered in 53-foot trailers. Simon Transportation has taken delivery on 982 such trailers, and orders for an additional 500 trailers have been placed for delivery in 1997. Management believes that these 53-foot trailers, which have been engineered with approximately the same weight as most 48-foot refrigerated trailers, offer a marketing advantage because of greater shipping capacity for customers. The Company's practice is to trade or replace its tractors on a three-year cycle and its trailers on a five-year cycle. The Company's tractor and trailer fleets had average ages of 12 and 17 months, respectively, at December 31, 1996. DRIVERS AND OTHER PERSONNEL Driver hiring and retention are critical to the success of all trucking companies. Simon Transportation emphasizes driver satisfaction and has made significant investments to improve its drivers' employment experience. Drivers are selected in accordance with specific Company quality guidelines relating primarily to safety history, driving experience, road test evaluations, and other personnel evaluations, including physical examinations and mandatory drug testing. The Company offers competitive compensation, including mileage pay, and full participation in all employee benefit and profit-sharing plans. The Company uses proprietary software to warn dispatchers in advance of a driver's requested home time. Management believes it has promoted driver loyalty by assigning drivers to a single dispatcher, regardless of geographic area, awarding dedicated 25 routes and regional distribution positions to senior, top-performing drivers, and educating customers concerning the need to treat drivers with respect. The truckload industry has experienced a shortage of qualified drivers. Strict DOT enforcement of hours-in-service limitations, mandatory drug and alcohol testing, and other safety measures have shrunk the available pool of drivers and increased the cost of recruiting and retention. Despite this driver shortage and vigorous competition for drivers during the past several years, the Company's driver turnover has decreased from 134% in fiscal 1990 to 76% in fiscal 1996, measuring drivers after they are assigned a tractor. At December 31, 1996, Simon Transportation employed approximately 400 non- driver employees and approximately 1,140 drivers. The Company's employees have never been represented by or attempted to organize a union, and management believes it has a good relationship with the Company's employees. SAFETY AND INSURANCE Simon Transportation emphasizes safety in all aspects of its operations. Its safety program includes: (i) initial orientation; (ii) a four-week to eight- week, on-the-road training program; (iii) 100% log monitoring; and (iv) progressive penalties for excessive speed. The Company has earned the highest DOT safety and fitness rating of "satisfactory," which most recently was extended on June 7, 1995. The Company carries primary and excess liability insurance coverage of $30 million, with a $100,000 deductible for personal injury and property damage. The Company's workers' compensation coverage also carries a $100,000 deductible, in states where a deductible is allowed, with no coverage limit. The Company's equipment is insured for fair market value, subject to deductibles of $25,000 for tractors and $10,000 for trailers, and cargo loss is covered to $200,000 with a $10,000 deductible. Management believes these coverages are adequate to cover reasonably anticipated claims. PROPERTIES Simon Transportation operates terminals and driver recruitment offices at five locations. The Company's headquarters is located on ten acres near the intersection of Interstates 15 and 80 in Salt Lake City, Utah, and includes a 17,000 square foot office building housing all operations and administrative personnel, a 23,000 square foot maintenance shop, and a 3,600 square foot driver recruitment and orientation center. The Company owns additional terminal and driver recruitment facilities in Phoenix, Arizona; Fontana, California; and Atlanta, Georgia; leases terminal space in Katy, Texas, and Portland, Oregon; and leases trailer drop yards at Tulare, California and various customer locations. All locations except the Atlanta office and the Katy office have modern fuel facilities with environmental monitoring equipment. The Company is constructing a new headquarters, shop, terminal, and driver recruitment and orientation center. Management anticipates that construction of the new facility will be completed in the spring of 1997. Upon completion, the Company intends to sell its existing facility. The available acreage will accommodate future expansion, and the facility has been designed so that additions can be constructed to serve the Company's foreseeable future needs. See "Management's Discussion and Analysis of Financial Condition and Results of Operations--Liquidity and Capital Resources." COMPETITION The truckload segment of the trucking industry is highly competitive and fragmented, and no carrier or group of carriers dominates the temperature- controlled or dry van market. According to the September 1996 issue of Refrigerated Transporter, the five largest temperature-controlled carriers by revenue are Frozen Food Express Industries, KLLM Transport Services, Prime, Inc., C. R. England & Sons, and Rocor International. The combined revenue reported for these five carriers comprises more than 25% of the estimated $4 billion for-hire, temperature-controlled market. The private fleet portion of the temperature-controlled market has been estimated 26 at an additional $3 billion. The Company's 1996 fiscal year revenue constituted approximately one percent of the total market for temperature- controlled services and approximately two percent of the for-hire market. The Company competes with a number of other trucking companies, as well as private truck fleets used by shippers to transport their own products. The Company competes to a limited extent with rail and rail-truck intermodal service, but attempts to limit this competition by seeking service-sensitive freight. There are other trucking companies, including diversified carriers with large temperature-controlled fleets, possessing substantially greater financial resources and operating more equipment than the Company. FUEL AVAILABILITY AND COST The Company actively manages its fuel costs by requiring drivers to fuel at Company terminals or, whenever possible en route, at service centers with which the Company has established volume purchasing arrangements. The Company controls fuel purchases by using its proprietary software and Qualcomm communications ability to schedule fueling stops and amounts purchased based upon fuel prices at locations on drivers' routes. The Company historically has been able to pass through most increases in fuel prices and taxes to customers in the form of higher rates. At September 30, 1996, the Company had entered into fuel surcharge agreements with approximately 45% of its customers. These customers represent approximately 70% of the Company's revenue for the year ended September 30, 1996. The fuel surcharges are adjusted weekly based on the national weekly average price of diesel fuel published by the Department of Energy. See "Management's Discussion and Analysis of Financial Condition and Results of Operations." REGULATION The Company is a common and contract motor carrier of general commodities. Historically, the Interstate Commerce Commission (the "ICC") and various state agencies regulated motor carriers' operating rights, accounting systems, mergers and acquisitions, periodic financial reporting, and other matters. In 1995, federal legislation preempted state regulation of prices, routes, and services of motor carriers and eliminated the ICC. Several ICC functions were transferred to the Department of Transportation (the "DOT"). Management does not believe that regulation by the DOT or by the states in their remaining areas of authority will have a material effect on the Company's operations. The Company's employee and independent contractor drivers also must comply with the safety and fitness regulations promulgated by the DOT, including those relating to drug and alcohol testing and hours of service. The Company's operations are subject to various federal, state, and local environmental laws and regulations, implemented principally by the EPA and similar state regulatory agencies, governing the management of hazardous wastes, other discharge of pollutants into the air and surface and underground waters, and the disposal of certain substances. These regulations extend to the above ground and underground fuel storage tanks located at each of the Company's terminal facilities. All of the Company's tanks are of double hull construction in accordance with EPA requirements and equipped with monitoring devices which constantly monitor for leakage. Management is not aware of any fuel spills or hazardous substance contamination on its properties and believes that its operations are in material compliance with current laws and regulations. LEGAL PROCEEDINGS The Company from time to time is a party to litigation arising in the ordinary course of its business, substantially all of which involves claims for personal injury and property damage incurred in the transportation of freight. The Company presently is not a party to any legal proceeding other than litigation arising from vehicle accidents, and management is not aware of any claims or threatened claims that reasonably would be expected to exceed insurance limits or have a materially adverse effect upon the Company's operations or financial position. 27 MANAGEMENT EXECUTIVE OFFICERS AND DIRECTORS The table below sets forth information concerning the Company's executive officers and directors.
NAME AGE POSITION WITH COMPANY - ---- --- --------------------- Richard D. Simon........ 60 Chairman of the Board, President, and Chief Executive Officer Alban B. Lang........... 50 Chief Financial Officer, Treasurer, and Secretary; Director Kelle A. Simon.......... 35 Vice President of Maintenance Lyn Simon............... 32 Vice President of Sales Richard D. Simon, Jr. .. 25 Vice President of Operations Irene Warr.............. 65 Director H. J. Frazier........... 61 Director
Richard D. Simon has over 40 years of experience in the trucking industry. He founded the Company in 1955 and has served as its Chairman of the Board, President, and Chief Executive Officer since its incorporation in 1972. Mr. Simon was involved in an action concerning underreporting of income for calendar 1983 relating to personal expenses paid by the Company, which was then 100% owned by him. Mr. Simon acted on the advice of his former accountant, who prepared and filed the tax return. In 1988 Mr. Simon pled guilty to a single count of attempted evasion of federal income tax, was fined $25,000, and served two years' probation. The Company was not a party to this action. Alban B. Lang has over 20 years of experience in the trucking industry. He has served as Chief Financial Officer, Treasurer, and Secretary since 1992, prior to which he served as Controller since 1987. Mr. Lang is a certified public accountant and holds two Bachelor of Science degrees, one in chemistry and the other in accounting, a Masters of Business Administration degree, and a Masters degree in fuel engineering, all from the University of Utah. He has served as a director of the Company since 1988. Kelle A. Simon has over 19 years of experience in the trucking industry. He has served as Vice President of Maintenance since 1992 and in that capacity also managed fleet purchasing. From 1986 to 1992 he served as Maintenance Director for the Company and was instrumental in the implementation of the Qualcomm software and computer systems. Prior to that time, Mr. Simon served the Company in a variety of capacities. Lyn Simon has over 15 years of experience in the trucking industry. He has served as Vice President of Sales since 1986. From 1984 to 1986, Mr. Simon served in numerous operating positions with the Company, including implementing computer and telecommunications systems, and managing the accounts receivable, accounts payable, public relations, and fuel tax and licensing departments. Richard D. Simon, Jr. has over six years of experience in the trucking industry. He has served as Vice President of Operations since 1992, prior to which he served as a dispatcher and customer service representative after joining the Company in 1990. Irene Warr has been engaged in the private practice of law in Salt Lake City since 1957 and has represented the Company in numerous matters since 1962. Ms. Warr represents many trucking companies and has specialized in motor carrier transportation law for over 30 years. She has served as a director since May 1995. H. J. Frazier held various management positions with Westinghouse Electric, Inc. from 1973 until his retirement in 1993, including serving as President of Westinghouse Communities, a residential real estate development subsidiary. Prior to joining Westinghouse, Mr. Frazier practiced as an attorney. He was a founder of Full House Resort, Inc., a publicly held resort and gaming properties enterprise. Mr. Frazier has served as a director since the Company's initial public offering on November 17, 1995. Richard D. Simon is the father of Kelle A. Simon, Lyn Simon, and Richard D. Simon, Jr. 28 COMMITTEES Compensation Committee. The Compensation Committee of the Board of Directors is composed of Richard D. Simon and Irene Warr. This committee reviews all aspects of compensation of the Company's executive officers and makes recommendations on such matters to the full Board of Directors. The Compensation Committee had sole discretion to select participants, grant awards, and otherwise administer the Company's Incentive Stock Plan prior to August 15, 1996, when such plan was amended to conform with new rules issued by the Securities and Exchange Commission. See "Management--Incentive Stock Plan." Audit Committee. The Audit Committee, composed of Mr. Frazier and Ms. Warr, makes recommendations to the Board of Directors concerning the selection of outside auditors, reviews the Company's financial statements, reviews and discusses audit plans, audit work, internal controls, and the report and recommendations of the Company's independent auditors, and considers such other matters in relation to the external audit of the financial affairs of the Company as may be necessary or appropriate in order to facilitate accurate and timely financial reporting. Stock Option Committee. The Board of Directors appointed a Stock Option Committee comprised of Richard D. Simon and Alban B. Lang to identify and make awards to non-officer participants under the Plan. EXECUTIVE COMPENSATION The following table sets forth the total compensation awarded to, earned by, or paid to the Company's chief executive officer and the four other most highly compensated executive officers for services rendered in all capacities during the fiscal years ended September 30, 1995 and 1996: SUMMARY COMPENSATION TABLE
LONG-TERM COMPENSATION -------------------------- ANNUAL COMPENSATION AWARDS PAYOUTS -------------------------------------- ------------------ ------- RESTRICTED OTHER ANNUAL STOCK OPTION/ ALL OTHER SALARY(1) BONUS COMPENSATION(2) AWARD(S) SAR LTIP COMPENSATION(3) NAME AND PRINCIPAL POSITION YEAR ($) ($) ($) ($) (#) PAYOUTS ($) - --------------------------- ---- --------- ----- --------------- ---------- ------- ------- --------------- Richard D. Simon ........ 1996 348,400 -- -- -- -- -- 11,539 Chairman, President, and 1995 210,000(4) -- 61,936 -- -- -- 11,539 Chief Executive Officer Alban B. Lang............ 1996 156,000 -- -- -- -- -- 7,483 Chief Financial Officer, 1995 156,000 -- 33,762 -- 23,000 -- 7,483 Treasurer, and Secretary Kelle A. Simon........... 1996 156,000 -- -- -- -- -- 3,974 Vice President of 1995 156,000(5) -- 52,628 -- 23,000 -- 2,893 Maintenance Lyn Simon................ 1996 156,000 -- -- -- -- -- 7,483 Vice President of Sales 1995 156,000 -- 42,768 -- 23,000 -- 7,483 Richard D. Simon, Jr. ... 1996 156,000 -- -- -- -- -- 7,423 Vice President of 1995 156,000 -- 65,689 -- 23,000 -- 7,423 Operations
- -------- (1) Includes amounts deferred pursuant to the Company's 401(k) Plan, which generally allows employees to defer up to 15% of their compensation, subject to applicable limitations set forth in the Internal Revenue Code. 29 (2) Represents the value of premiums and taxes due with respect to life insurance policies that the Company has discontinued. Excludes $1,198,672 and $492,509 for Richard D. Simon, $74,325 and $20,762 for Alban B. Lang, and $80,154 and $22,947 for each of Kelle A. Simon, Lyn Simon, and Richard D. Simon, Jr., in S Corporation distributions, paid in fiscal 1995 and 1996 prior to the Company's S Corporation's termination on November 17, 1995, respectively. (3) Represents $2,803 in Company-paid health benefits for each of the named executives and Company contributions pursuant to the Company's 401(k) Plan in the amount of $8,736, $4,680, $4,680, and $4,620 for 1995 and 1996 for Richard D. Simon, Alban B. Lang, Lyn Simon, and Richard D. Simon, Jr., respectively. The Company's contribution pursuant to the 401(k) Plan for Kelle A. Simon was $90 and $1,171 for 1995 and 1996, respectively. (4) During the fiscal year ended September 30, 1995, Mr. Simon also received $532,000 in rental payments relating to certain real estate and revenue equipment leased to the Company by R. D. Simon Trucking. Mr. Simon contributed the R. D. Simon Trucking assets, subject to related liabilities, to the Company effective April 19, 1995 and no longer leases any assets to the Company. Contemporaneously with the contribution of such assets, Mr. Simon's salary was adjusted to $348,400 annually. See "Holding Company Formation" and "Certain Transactions--Past Transactions." (5) Excludes $21,772 paid to Kelle A. Simon, which represents the excess of the August 1995 sale price over the April 1995 valuation of certain real estate acquired by the Company in the Freight Sales merger. EXECUTIVE BONUS PROGRAM The Company has adopted an executive bonus program for the 1997 fiscal year in which certain executive officers and key employees are eligible to participate in a bonus pool equal to five percent of the Company's earnings before provision for income taxes. For the 1997 fiscal year, Richard D. Simon has been allocated 25% of the aggregate bonus amount, and each of Kelle A. Simon, Lyn Simon, Sherry L. Simon Bokovoy, Richard D. Simon, Jr., and Alban B. Lang has been allocated 15% of the aggregate bonus amount. STOCK OPTIONS The Company did not grant stock options to the Named Officers during the fiscal year ended September 30, 1996. On December 18, 1996, the Board of Directors granted options to purchase 27,000 shares of Class A Common Stock at $16.00 per share to each of the Named Officers other than Richard D. Simon. The following table sets forth information with respect to the Named Officers concerning the exercise and ownership of options held at September 30, 1996: AGGREGATED OPTION EXERCISES AND HOLDINGS IN LAST FISCAL YEAR
NUMBER OF OPTIONS AT 9/30/96 VALUE OF OPTIONS AT 9/30/96(1) NAME SHARES VALUE EXERCISABLE/UNEXERCISABLE EXERCISABLE/UNEXERCISABLE ---- ------ ----- ---------------------------- ------------------------------ Richard D. Simon........ -- -- -- -- Alban B. Lang........... -- -- 4,600/18,400 $22,264/89,056 Kelle A. Simon.......... -- -- 4,600/18,400 $22,264/89,056 Lyn Simon............... -- -- 4,600/18,400 $22,264/89,056 Richard D. Simon, Jr.... -- -- 4,600/18,400 $22,264/89,056
- -------- (1) Based on the $13.84 closing price of the Company's Class A Common Stock on September 30, 1996. The Company does not have a long-term incentive plan or a defined benefit or actuarial plan and has never issued any stock appreciation rights. INCENTIVE STOCK PLAN The Company maintains an Incentive Stock Plan (the "Plan") to attract and retain employees and motivate them through incentives that are aligned with the Company's goals of increased profitability and stockholder 30 value. Awards under the Plan were originally made by the Compensation Committee of the Board of Directors in compliance with then applicable Rule 16b-3(c) of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Effective August 15, 1996, the Board of Directors voted to amend the Plan to bring it into compliance with new Section 16 rules under the Exchange Act and rely on the new Section 16 rules as of that date. Accordingly, the Plan is presently administered by the Board of Directors and may be administered in the future by a committee if one is appointed by the Board of Directors. The Board has approved a Stock Option Committee, comprised of Richard D. Simon and Alban B. Lang, to identify and make awards to non-officer participants. Nonemployee directors would comprise any committee that makes awards to executive officers, directors, or 10% stockholders. Awards may be in the form of incentive stock options, non- qualified stock options, restricted stock awards, or any other awards of stock consistent with the Plan's purpose. Decisions of the administrator are binding upon the Company and all participants. The administrator may amend the Plan but may not, without the prior approval of the stockholders, amend the plan to extend the period during which the options or awards may be granted or exercised, extend the term of the Plan, or increase the total number of reserved shares. The administrator may substitute new stock options for previously granted options. No awards of incentive stock options may be made after May 31, 2005. The Company originally reserved 400,000 shares of Class A Common Stock for issuance pursuant to the Plan. To date the Company has outstanding options covering approximately 363,700 of such shares and options representing approximately 2,000 shares have been exercised. All options granted under the Plan vest 20% per year on the first through the fifth anniversaries of the grant. The price payable upon exercise of an option may be satisfied in cash or, in the administrator's discretion, with previously acquired shares of the Company's Class A Common Stock or vested but unexercised options (valued at the difference between the market price of the stock on the date of exercise and the exercise price). The market price of the stock as of December 31, 1996, was $15 1/2, which results in the options having a market value of $665,570 at such date. Options or awards that expire unexercised, are forfeited, or are settled in exchange for tax withholding or in payment of the exercise price of other options, become available again for issuance under the Plan. The administrator may determine when and in what amounts future awards vest and options become exercisable. Terms of awards need not be the same for all participants. No awards have been granted to Richard D. Simon, the Company's Chairman, President, and Chief Executive Officer. Options for 50,000 shares each have been granted to Named Officers Kelle A. Simon, Lyn Simon, Richard D. Simon, Jr., and Alban B. Lang, as well as to Sherry L. Simon Bokovoy, the Company's Assistant Treasurer and Assistant Secretary, who is a daughter of Richard D. Simon. These options include options to purchase 23,000 shares each at an exercise price of $9.00 per share granted June 1, 1995, and 27,000 shares each at an exercise price of $16.00 per share granted December 18, 1996. The options to purchase an aggregate 200,000 shares granted to such persons constitute 5% or more of the shares subject to the Plan. Mrs. Bokovoy is the only associate of any director, or executive officer who has been granted options. 401(K) PROFIT SHARING PLAN The Company maintains a defined contribution plan (the "401(k) Plan"), which is intended to satisfy the tax qualification requirements of sections of the Internal Revenue Code of 1986, as amended (the "Code"). All Company personnel age 21 or older are eligible to participate in the 401(k) Plan after one year of service with the Company. The 401(k) Plan permits participants to contribute up to 15% of their annual compensation from the Company, subject to the limits imposed by the Code. All amounts deferred under the 401(k) Plan by a participant fully vest immediately. The 401(k) Plan also permits discretionary contributions by the Company, which contributed $94,500, $141,240, and $192,389 in 1994, 1995, and 1996, respectively. Amounts contributed by the Company vest 20% each year from the second through the sixth year after contributions. The Company has no defined benefit or actuarial plans. 31 COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION. Ms. Warr has served on the Compensation Committee since the Company's initial public offering on November 17, 1995. She is not an officer or employee of the Company. On May 3, 1996, Richard D. Simon was appointed to serve on the Compensation Committee. Effective January 1, 1995, the Company agreed to pay Ms. Warr $30,000 annually ($2,500 per month) and provide her health insurance coverage at a cost to the Company of $130 per month and an office at the Company's headquarters. Ms. Warr has served as counsel to Richard D. Simon since 1962 and the Company since its incorporation in 1972. See "Certain Transactions" for additional disclosure of transactions between the Company and its directors and executive officers. DIRECTORS' COMPENSATION Directors who are not employees of the Company receive an annual retainer of $5,000 plus $1,000 per meeting of the Board of Directors or a committee thereof attended by the director (if such committee meeting is held other than on the day of a Board meeting), plus reimbursement of expenses incurred in attending such Board or committee meetings. Non-employee directors also receive the annual option to purchase 1,000 shares of the Company's Class A Common Stock at 85% of the market price on the last day of the calendar month immediately preceding the date of the grant, except for 1995, in which the exercise price was $9.00. The Company originally reserved 25,000 shares of Class A Common Stock for issuance under the Outside Director Stock Plan. To date the Company has outstanding options covering 4,000 of such shares, and an option to purchase 1,000 shares has been exercised. CERTAIN TRANSACTIONS Effective April 19, 1995, the Company issued an aggregate 841,668 shares of Common Stock to Richard D. Simon, Kelle A. Simon, Lyn Simon, Sherry L. Simon Bokovoy, and Richard D. Simon, Jr. in exchange for the assets and stock of certain related entities and the contribution of notes payable to such stockholders by the Company. Prior to April 19, 1995, the Company leased certain real estate and revenue equipment from R. D. Simon Trucking. The Company paid rent of approximately $532,000 from October 1, 1994 to April 19, 1995 and $912,000 in fiscal 1994, but all of such amounts were eliminated in the Company's audited and interim consolidated financial statements because of related ownership and the single purpose of the entities. Effective April 19, 1995, the Company acquired all of the assets formerly leased from R. D. Simon Trucking in the recapitalization described in "Holding Company Formation" and Note 1 to the Consolidated Financial Statements. Prior to April 19, 1995, the Company leased certain revenue equipment from Freight Sales, a corporation owned 25% by each of Kelle A. Simon, Lyn Simon, Sherry L. Simon Bokovoy, and Richard D. Simon, Jr. The Company paid Freight Sales approximately $90,000 in fiscal 1994 and $30,000 from October 1, 1994 to April 19, 1995. Effective April 19, 1995, the Company merged Freight Sales into the Company in the recapitalization described in "Holding Company Formation." As an S Corporation prior to November 17, 1995, the Company periodically paid pro rata distributions to its then-existing stockholders. The amounts of such distributions were $1,438,974, $1,593,611, and $605,060 for the fiscal years ended September 30, 1994, 1995, and 1996, respectively. See "Holding Company Formation." Sherry L. Simon Bokovoy and Jon Bokovoy are the daughter and son-in-law of Richard D. Simon. Ms. Bokovoy is employed by the Company as assistant treasurer and assistant secretary, and Mr. Bokovoy is employed by the Company as a customer service representative. Ms. Bokovoy was paid an aggregate of $81,377 ($24,331 in salary and $57,046 in insurance cost) and $90,924 ($32,600 in salary, $1,278 in employer contributions to the 401(k) Plan, and $57,046 in insurance cost) during fiscal years 1994 and 1995, respectively. She was paid an aggregate $99,211 during the 1996 fiscal year, which included $93,600 in salary and $2,808 in employer contributions to the 401(k) Plan, and $2,803 in health insurance costs. Mr. Bokovoy was paid an 32 aggregate of $124,800, $101,352 ($98,400 in salary and $2,952 in employer contributions to the 401(k) Plan), and $64,781 ($62,900 in salary and $1,881 in employer contributions to the 401(k) Plan) during fiscal years 1994, 1995, and 1996, respectively. Ms. Bokovoy is a participant in the executive bonus program for the 1997 fiscal year and has been allocated 15% of the available bonus amount. The bonus program provides for an aggregate amount equal to five percent of earnings before provision for income taxes. See "Management-- Executive Compensation." Prior to the Company's initial public offering, Richard D. Simon guaranteed the Company's line of credit and all of its revenue equipment debt, capitalized leases, and operating leases. The guarantees were released after the offering. For additional information concerning certain transactions involving the Company's officers and directors, see "Management--Compensation Committee Interlocks and Insider Participation." Upon completion of its initial public offering, the Company adopted a policy that any future transactions with affiliated persons or entities would be on terms no less favorable to the Company than those that could have been obtained on an arms-length basis from unaffiliated third parties and that any such transactions must be approved by a majority of the disinterested directors. 33 PRINCIPAL AND SELLING STOCKHOLDERS The following table sets forth information regarding the beneficial ownership of Class A and Class B Common Stock as of the date of this Prospectus, and as adjusted to reflect the sale of the shares of Class A Common Stock offered hereby, by each person known by the Company to beneficially own more than 5% of the outstanding shares of Common Stock; each of the Company's directors; each of the executive officers identified in the Summary Compensation Table; and all directors and executive officers as a group. Unless otherwise indicated, each of the stockholders has sole voting and investment power with respect to the shares beneficially owned.
SHARES BENEFICIALLY SHARES SHARES TO BE BENEFICIALLY OWNED BEFORE OFFERING(1) OFFERED OWNED AFTER OFFERING(1) ------------------------------------ ------------------------------ NAME AND ADDRESS(2) NUMBER PERCENT(3) NUMBER NUMBER PERCENT(3) ------------------- -------------- --------------------- --------------- -------------- Richard D. Simon(4)(5).. 1,882,661 39.7% 500,000 1,382,661 22.4% Alban B. Lang........... 79,923 1.7% 15,000 64,923 1.1% Kelle A. Simon.......... 88,229 1.9% 15,000 73,229 1.2% Lyn Simon............... 82,507 1.7% 15,000 67,507 1.1% Richard D. Simon, Jr. .. 87,229 1.8% 15,000 72,229 1.2% Irene Warr.............. 400 * -- 400 * H. J. Frazier........... 5,000 * -- 5,000 * Sherry L. Simon Bokovoy................ 87,229 1.8% 15,000 72,229 1.2% Cowen Asset Management.. 283,400 6.0% -- 283,400 4.7% All directors and executive officers as a group (first 7 persons)............... 2,225,949 46.9% 560,000 1,665,949 27.0%
- -------- * Less than one percent. (1) Assumes no exercise of the underwriters' over-allotment option. Excludes options to purchase 200,000 shares of Class A Common Stock granted (50,000 shares each, of which 4,600 shares each were at December 31, 1996, subject to vested but unexercised options) to Kelle A. Simon, Lyn Simon, Richard D. Simon, Jr., and Alban B. Lang under the Company's Incentive Stock Plan. Unless otherwise indicated all shares are owned directly. (2) The address of Richard D. Simon is 4646 South 500 West, Salt Lake City, Utah 84123, and the address of Cowen Asset Management is Financial Square, 31st Floor, New York, New York 10005. (3) Percentage ownership includes both Class A and Class B Common Stock. (4) Mr. Simon owns 10,500 shares of Class A Common Stock and 1,872,161 shares of Class B Common Stock. All of Mr. Simon's Class A Common Stock and 489,500 shares of his Class B Common Stock will be sold in the Offering. (5) All shares are held by Richard D. Simon, Trustee of the Richard D. Simon Revocable Trust, UTAD 2/12/93, of which the four children of Richard D. Simon are the beneficiaries, subject to a life estate in favor of Valene Simon, wife of Richard D. Simon. Because the Class B Common Stock is entitled to two votes per share, Mr. Simon, as Trustee, controls 56.7% of the combined voting power of the Common Stock before the Offering and 36.6% after the Offering (31.7% if the Underwriters' over-allotment option is exercised in full). See "Risk Factors--Voting Control of the Company." 34 DESCRIPTION OF CAPITAL STOCK GENERAL The Company is authorized to issue up to 20,000,000 shares of Class A Common Stock, par value one cent ($.01) per share, 5,000,000 shares of Class B Common Stock, par value one cent ($.01) per share, and 5,000,000 shares of preferred stock, par value one cent ($.01) per share. At December 31, 1996, 2,872,757 shares of Class A Common Stock, 1,872,161 shares of Class B Common Stock, and no shares of preferred stock were issued and outstanding. As of October 31, 1996 the Class A Common Stock was held by 669 stockholders of record, and all shares of Class B Common Stock are held by Richard D. Simon. However, the Company believes a substantial number of the Company's shares are held of record by brokers or dealers for their customers in street names. All of the outstanding Common Stock is, and the shares of Class A Common Stock offered by the Company hereby when issued and paid for will be, fully paid and non- assessable. CLASS A AND CLASS B COMMON STOCK Voting. Holders of Class A Common Stock are entitled to one vote per share. Holders of Class B Common Stock are entitled to two votes per share. All actions submitted to a vote of stockholders are voted on by holders of Class A and Class B Common Stock voting together as a single class, except as otherwise required by law. Holders of the Company's Common Stock are not entitled to cumulative voting in the election of directors. Conversion. Class A Common Stock has no conversion rights. Holders of Class B Common Stock may convert their Class B Common Stock into Class A Common Stock at any time at the ratio of one share of Class A Common Stock for each share of Class B Common Stock. Class B Common Stock immediately and automatically converts into an equal number of Class A Common Stock shares if any person other than Richard D. Simon, Valene Simon, Kelle A. Simon, Lyn Simon, Sherry L. Simon Bokovoy, and Richard D. Simon, Jr. (or trusts for the benefit of any of them or entities wholly owned by any of them), obtains ownership of such shares. Dividends. Holders of Class A Common Stock and Class B Common Stock are entitled to receive dividends payable in cash or property other than Common Stock on an equal basis, if and when such dividends are declared by the Board of Directors from funds legally available, subject to any preference in favor of outstanding shares of preferred stock, if any. In the case of any dividend payable in Common Stock, all holders of Common Stock shall receive the same percentage dividend, with the holders of Class A Common Stock receiving shares of Class A Common Stock and the holders of Class B Common Stock receiving shares of Class A or Class B Common Stock, as determined by the Board of Directors when declaring such dividend. Liquidation. In the event of liquidation, holders of Class A and Class B Common Stock participate with each other on a ratable basis as a single class in the net assets of the Company available for distribution after payment or provision for liabilities of the Company and payment of the liquidation preference, if any, on any outstanding shares of preferred stock. Other Terms. Neither the Class A nor the Class B Common Stock may be subdivided, consolidated, reclassified, or otherwise changed unless contemporaneously therewith the other class of shares is subdivided, consolidated, reclassified, or otherwise changed in the same proportion and in the same manner. In any merger, consolidation, reorganization, or other business combination, the consideration to be received per share by holders of either Class A or Class B Common Stock must be identical to that received by holders of the other class of Common Stock, except that if, after such business combination, Richard D. Simon, Valene Simon, Kelle A. Simon, Lyn Simon, Sherry L. Simon Bokovoy, and Richard D. Simon, Jr. (or trusts for the benefit of any of them or entities wholly owned by any of them) beneficially own, in the aggregate, more than one-third of the equity interests in the surviving entity, any securities received by them may differ as to voting rights only to the extent that voting rights now differ between Class A and Class B Common Stock. Holders of Common Stock are not entitled to preemptive rights and neither the Class A Common Stock nor the Class B Common Stock is subject to redemption. 35 The rights, preferences, and privileges of holders of both classes of Common Stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred stock which the Company may designate and issue in the future. PREFERRED STOCK The Board of Directors is authorized to issue, from time to time, without approval of the stockholders, up to 5,000,000 shares of preferred stock in one or more series. The Board of Directors may fix for each series: the distinctive serial designation and number of shares of the series; the voting powers and the right, if any, to elect a director or directors (and the terms of office of any such directors); the dividend rights, if any; the terms of redemption, and the amount of and provisions regarding any sinking fund for the purchase or redemption thereof; the liquidation preferences and the amounts payable on dissolution or liquidation; the terms and conditions under which shares of the series may or shall be converted into any other series or class of stock or debt of the corporation; and any other terms or provisions which the Board of Directors is legally authorized to fix or alter. It is not possible to state the actual effect of the authorization of the preferred stock upon the rights of holders of the Common Stock until the Board determines the specific rights of the holders of any series of preferred stock. Depending upon the rights granted to any series of preferred stock, issuance thereof could adversely affect the voting power, liquidation preference, or other rights of the holders of Common Stock or other preferred stock. The Board's authority to issue shares of preferred stock provides a potential vehicle for use in possible acquisitions and other corporate purposes, but its issuance, for example in connection with a stockholder rights plan, could have the effect of making it more difficult for a third party to acquire, or of discouraging a third party from acquiring, control of the Company. The Company has no present plans to issue any shares of preferred stock. CERTAIN PROVISIONS OF ARTICLES AND BYLAWS Provisions with Anti-Takeover Implications. Certain provisions of the Company's Articles of Incorporation ("Articles") and Bylaws deal with matters of corporate governance and the rights of stockholders. Under the Company's Articles, the Board of Directors may issue shares of preferred stock and set the voting rights, preferences, and other terms thereof, and the Board of Directors may also issue Class B Common Stock, which possesses disproportionate voting rights while owned by Simon family members. The Company's Bylaws provide that a special meeting of stockholders may be called only by the Chairman of the Board, the President, or a majority of the directors. Such provisions, together with certain provisions of the Nevada General Corporation Law (see "Description of Capital Stock--Statutory Anti- Takeover Provisions"), could be deemed to have an anti-takeover effect and discourage takeover attempts not first approved by the Board of Directors (including takeovers which certain stockholders may deem to be in their best interest). Any such discouraging effect upon takeover attempts could potentially depress the market price of the Class A Common Stock or inhibit temporary fluctuations in the market price of the Class A Common Stock that otherwise could result from actual or rumored takeover attempts. Indemnification and Limitation of Liability. Under its Articles and Bylaws, the Company will indemnify its officers, directors, and agents against all liabilities and expenses reasonably incurred in connection with service for or on behalf of the Company to the full extent permitted by Nevada law. The Company also is authorized to advance expenses, purchase insurance, enter into indemnification agreements, and otherwise grant broader indemnification rights. The Articles also eliminate the liability of directors and officers to the Company or its stockholders for monetary damages for breach of fiduciary duty except to the extent such exemption from liability or limitation thereof is not permitted under the Nevada General Corporation Law. This provision does not eliminate the duty of care and, in appropriate circumstances, equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Nevada law. In addition, each director continues to be subject to liability for monetary damages for acts or omissions involving intentional misconduct, fraud, knowing violations of law, and unlawful distributions. The Company believes that these provisions of its Articles and Bylaws are necessary to attract and retain qualified persons as directors and officers. 36 STATUTORY ANTI-TAKEOVER PROVISIONS Nevada's "Combination with Interested Stockholders Statute" and "Control Share Acquisition Statute" may have the effect of delaying or making it more difficult to effect a change in control of the Company. The Combination with Interested Stockholders Statute prevents an "interested stockholder" and an applicable Nevada corporation from entering into a "combination," unless certain conditions are met. A "combination" includes, among other transactions, any merger or consolidation with an "interested stockholder," or any sale, lease, exchange, mortgage, pledge, transfer, or other disposition, in one transaction or a series of transactions with an "interested stockholder" having: an aggregate market value equal to 5% or more of the aggregate market value of the assets of a corporation; an aggregate market value equal to 5% or more of the aggregate market value of all outstanding shares of a corporation; or representing 10% or more of the earning power or net income of the corporation. An "interested stockholder" means the beneficial owner of 10% or more of the voting shares of a corporation, or an affiliate or associate thereof. A corporation may not engage in a "combination" within three years after the interested stockholder acquired his shares unless the combination or purchase is approved by the board of directors before the interested stockholder acquired such shares. If this approval is not obtained, then after the expiration of the three-year period, the business combination may be consummated by the approval of the board of directors before the interested stockholder's date of acquiring shares, or a majority of the voting power held by disinterested stockholders, or if the consideration to be paid by the interested stockholder is at least equal to the highest of: the highest price per share paid by the interested stockholder within the three years immediately preceding the date of the announcement of the combination or in the transaction in which he became an interested stockholder, whichever is higher (as adjusted for interest and dividends); the market value per common share on the date of announcement of the combination or the date the interested stockholder acquired the shares, whichever is higher (as adjusted for interest and dividends); or if higher for the holders of shares of preferred stock, the highest liquidation value for the shares of preferred stock. Nevada's Control Share Acquisition Statute prohibits an acquiror, under certain circumstances, from voting shares of a target corporation's stock after crossing certain threshold ownership percentages, unless the acquiror obtains the approval of the target corporation's disinterested stockholders. The Control Share Acquisition Statute specifies three thresholds: one-fifth or more but less than one-third, one-third but less than a majority, and a majority or more, of the outstanding voting power. Once an acquiror crosses one of the above thresholds in an offer or acquisition, those shares acquired within 90 days become Control Shares (as defined in such statute) and such Control Shares are deprived of the right to vote until disinterested stockholders restore the right. The Control Share Acquisition Statute also provides that in the event Control Shares are accorded full voting rights and the acquiring person has acquired a majority or more of all voting power, all other stockholders who do not vote in favor of authorizing voting rights to the Control Shares are entitled to demand payment for the fair value of their shares. The board of directors is to notify the stockholders as soon as practicable after such an event has occurred that they have the right to receive the fair value of their shares in accordance with statutory procedures established generally for dissenters' rights. This statute is applicable only to Nevada corporations doing business in the state and that have at least 200 stockholders, at least 100 of whom are stockholders of record and residents of Nevada. TRANSFER AGENT AND REGISTRAR UMB Bank, n.a., 928 Grand Avenue, Kansas City, Missouri 64106, is the Transfer Agent and Registrar for the Class A Common Stock. 37 SHARES ELIGIBLE FOR FUTURE SALE Upon completion of the Offering, the Company will have outstanding 6,169,918 shares of Common Stock. Of these shares, all of the 2,000,000 shares (2,300,000 shares if the Underwriters' over-allotment option is exercised in full) sold in the Offering will be freely transferable by persons other than "affiliates" of the Company, without further restriction under the Securities Act. Of the remaining 4,169,918 shares, 3,624,615 were freely tradeable without restriction or registration prior to the Offering and 545,303 are restricted shares within the meaning of Rule 144 and may not be sold without registration or an exemption from registration. In connection with the Offering, the Selling Stockholders, along with the Company and its other executive officers and directors, who will beneficially own approximately 1,738,178 or 28.2% of the Company's outstanding Common Stock after the Offering, have agreed not to sell or otherwise dispose of any of their shares, directly or indirectly, for 180 days from the date of this Prospectus without the prior written consent of Morgan Keegan & Company, Inc. After the 180 day period all such shares will be eligible for sale, subject to compliance with Rule 144. See "Principal and Selling Stockholders" and "Risk Factors--Shares Eligible for Future Sale." In general, Rule 144 provides that, subject to its provisions and other applicable federal and state securities law requirements, any person (or persons whose shares are aggregated), including any person who may be deemed an "affiliate" as defined under the Securities Act, who has beneficially owned shares for at least two years is entitled to sell, within any three-month period, a number of shares that does not exceed the greater of (i) the average weekly trading volume of the same class of securities during the four calendar weeks preceding the filing of notice of the sale with the Securities and Exchange Commission; or (ii) 1% of the same class of securities then outstanding, subject in each case to certain manner-of-sale provisions, notice requirements, and the availability of current information concerning the Company. A person who is not deemed an "affiliate" of the Company and who has beneficially owned shares for at least three years is entitled to sell shares under Rule 144 without regard to the volume limitations and current public information, manner of sale, and notice requirements described above. Restricted shares will also be eligible for sale to "qualified institutional buyers" pursuant to Rule 144A under the Securities Act, without regard to the volume limitations contained in Rule 144. The Company has filed registration statements under the Securities Act to register shares of Class A Common Stock reserved for issuance under its Incentive Stock Plan, Outside Director Stock Plan, and 401(k) Plan, thus permitting the resale of such shares by non-affiliates in the public market without restriction under the Securities Act. A total of 400,000 shares originally were reserved for issuance under the Incentive Stock Plan. Options covering approximately 363,700 of such shares are currently outstanding and options for approximately 2,000 shares have been exercised. An additional 25,000 shares were reserved for issuance under the Outside Director Stock Plan. Options covering 4,000 of such shares are currently outstanding and options for 1,000 shares have been exercised. At September 30, 1996, the 401(k) Plan had 69,389 shares allocated to employee accounts and the total dollar value invested in the Employer Stock Fund was $1,075,530. 38 UNDERWRITING The Underwriters named below (the "Underwriters"), for whom Morgan Keegan & Company, Inc., A.G. Edwards & Sons, Inc., and George K. Baum & Company are acting as representatives (the "Representatives"), have severally agreed, subject to the terms and conditions of the Underwriting Agreement, to purchase from the Company, the aggregate number of shares of Class A Common Stock set forth opposite their respective names below:
UNDERWRITERS NUMBER OF SHARES ------------ ---------------- Morgan Keegan & Company, Inc. ........................... A.G. Edwards & Sons, Inc. ............................... George K. Baum & Company................................. --------- Total................................................ 2,000,000 =========
The Underwriting Agreement provides that the obligations of the Underwriters thereunder are subject to approval of certain legal matters by counsel and to various other conditions, including, among other things, the continuing accuracy of the representations and warranties of the Company and Selling Stockholders contained in the Underwriting Agreement, the performance by the Company and Selling Stockholders of their respective obligations under the Underwriting Agreement, and the receipt of an opinion of counsel for the Company in form and substance reasonably satisfactory to counsel for the Underwriters. The nature of the Underwriters' obligations is such that they are committed to purchase and pay for all of the shares of Class A Common Stock, if any are purchased. The Underwriting Agreement contains covenants of indemnity between the Underwriters and the Company and Selling Stockholders against certain civil liabilities, including liabilities under the Securities Act. The Company has been advised by the Representatives that the Underwriters propose to offer the shares of Class A Common Stock to the public at the offering price set forth on the cover page of this Prospectus and to certain dealers at such price less a concession not in excess of $ per share. The Underwriters may allow, and such dealers may reallow, a concession not in excess of $ per share to other dealers. The offering price and the concessions and discount to dealers may be changed by the Representatives after the offering. The Company and Richard D. Simon have granted to the Underwriters an option, expiring on the thirtieth day subsequent to the date of this Prospectus, to purchase up to an additional 100,000 and 200,000 shares of Class A Common Stock, respectively, at the price to public, less underwriting discount, as shown on the cover page of this Prospectus. The Underwriters may exercise such option solely for the purpose of covering over-allotments, if any, incurred in the sale of Class A Common Stock offered hereby. To the extent that the Underwriters exercise such option, each Underwriter will become obligated, subject to certain conditions, to purchase approximately the same percentage of such additional shares as the number of shares of Class A Common Stock set forth next to such Underwriter's name in the preceding table bears to the total offered initially. 39 The Company has agreed to indemnify the several Underwriters or to contribute to losses arising out of certain liabilities, including liabilities under the Securities Act. With certain limited exceptions, the Company and its executive officers have agreed not to offer, sell, contract to sell, grant any option to purchase, or otherwise dispose (or announce any offer, sale, or grant of any option to purchase or other disposition) of any shares of Class A Common Stock, or any securities convertible into, or exercisable or exchangeable for, shares of Class A Common Stock for a period of 180 days after the date of this Prospectus, without the prior written consent of Morgan Keegan & Company, Inc. The Representatives have informed the Company that the Underwriters do not intend to confirm sales to any account over which they exercise discretionary authority. One or more of the Underwriters currently act as market makers for the Class A Common Stock and may engage in "passive market making" in such securities on the Nasdaq National Market in accordance with Rule 10b-6A under the Exchange Act. Rule 10b-6A permits, upon the satisfaction of certain conditions, underwriters and selling group members participating in a distribution that are also Nasdaq market makers in the security being distributed to engage in limited market making transactions during the period when Rule 10b-6 under the Exchange Act would otherwise prohibit such activity. Rule 10b-6A prohibits underwriters and selling group members engaged in passive market making generally from entering a bid or effecting a purchase at a price that exceeds the highest bid for those securities displayed on the Nasdaq National Market by a market maker that is not participating in the distribution. Under Rule 10b-6A, each underwriter or selling group members engaged in passive market making is subject to a daily net purchase limitation equal to 30% of such entity's average daily trading volume during the two full consecutive calendar months immediately preceding the date of the filing of the registration statement under the Securities Act pertaining to the security to be distributed. LEGAL MATTERS The validity of the shares of Class A Common Stock offered hereby will be passed upon for the Company by Scudder Law Firm, P.C., Lincoln, Nebraska. Certain legal matters in connection with the Offering are being passed upon for the Underwriters by Baker, Donelson, Bearman & Caldwell, a Professional Corporation, Memphis, Tennessee. EXPERTS The consolidated financial statements included in this Prospectus have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their report with respect thereto, and are included herein in reliance upon the authority of said firm as experts in giving said report. 40 INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
PAGE ---- Index to Consolidated Financial Statements Covered by Report of Independent Public Accountants Report of Independent Public Accountants................................ F-2 Consolidated Statements of Earnings for the Years Ended September 30, 1994, 1995, and 1996, and for the Three Months Ended December 31, 1995 (unaudited) and 1996 (unaudited)....................................... F-3 Consolidated Statements of Financial Position as of September 30, 1995 and 1996, and as of December 31, 1996 (unaudited)...................... F-4 Consolidated Statements of Stockholders' Equity for the Years Ended September 30, 1994, 1995, and 1996, and for the Three Months Ended December 31, 1995 (unaudited) and 1996 (unaudited)..................... F-5 Consolidated Statements of Cash Flows for the Years Ended September 30, 1994, 1995, and 1996, and for the Three Months Ended December 31, 1995 (unaudited) and 1996 (unaudited)....................................... F-6 Notes to Consolidated Financial Statements.............................. F-7
F-1 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To the Board of Directors of Simon Transportation Services Inc.: We have audited the accompanying consolidated statements of financial position of Simon Transportation Services Inc. (a Nevada corporation) and subsidiary as of September 30, 1995 and 1996 and the related consolidated statements of earnings, stockholders' equity, and cash flows for each of the three years in the period ended September 30, 1996. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Simon Transportation Services Inc. and subsidiary as of September 30, 1996 and 1995, and the results of their operations and their cash flows for each of the three years in the period ended September 30, 1996 in conformity with generally accepted accounting principles. /s/ Arthur Andersen LLP Salt Lake City, Utah October 11, 1996 F-2 SIMON TRANSPORTATION SERVICES INC. CONSOLIDATED STATEMENTS OF EARNINGS
FOR THE THREE MONTHS ENDED FOR THE YEARS ENDED SEPTEMBER 30, DECEMBER 31, -------------------------------------- ---------------------------- 1994 1995 1996 1995 1996 ----------- ----------- ------------ ------------- ------------- (UNAUDITED) (UNAUDITED) Operating Revenue....... $71,690,734 $75,218,184 $101,089,530 $ 20,588,101 $ 34,166,193 ----------- ----------- ------------ ------------- ------------- Operating Expenses: Salaries, wages, and benefits............. 25,948,755 28,035,318 40,014,702 8,241,904 13,171,808 Fuel and fuel taxes... 14,362,789 14,115,283 20,359,375 4,042,972 6,657,636 Operating supplies and expenses............. 8,978,394 10,839,485 13,701,428 3,166,317 4,350,499 Taxes and licenses.... 2,557,612 2,756,587 3,287,833 700,390 1,436,465 Insurance and claims.. 1,995,244 2,002,505 2,172,308 274,627 626,360 Communications and utilities............ 1,274,074 1,244,650 1,679,967 354,331 530,004 Depreciation and amortization......... 6,856,673 7,222,887 5,919,494 1,728,200 1,513,545 Rent.................. 3,435,117 2,925,541 4,793,804 418,792 3,446,607 ----------- ----------- ------------ ------------- ------------- Total operating expenses........... 65,408,658 69,142,256 91,928,911 18,927,533 31,732,924 ----------- ----------- ------------ ------------- ------------- Operating earnings.. 6,282,076 6,075,928 9,160,619 1,660,568 2,433,269 Other (Expense) Earnings: Interest expense...... (3,191,708) (3,558,932) (2,849,549) (805,597) (446,623) Other, net............ 55,876 31,751 92,025 -- -- ----------- ----------- ------------ ------------- ------------- Earnings before provision for income taxes.................. 3,146,244 2,548,747 6,403,095 854,971 1,986,646 Provision for income taxes (Note 11)........ -- -- 5,454,170 3,257,112 750,952 =========== =========== ============ ============= ============= Net Earnings............ $ 3,146,244 $ 2,548,747 $ 948,925 $ (2,402,141) $ 1,235,694 =========== =========== ============ ============= ============= Unaudited Pro Forma Information: (Note 11) Earnings before provision for income taxes................ $ 3,146,244 $ 2,548,747 $ 6,403,095 $ 854,971 $ 1,986,646 Provision for income taxes................ 1,245,913 1,009,304 2,535,626 338,569 750,952 ----------- ----------- ------------ ------------- ------------- Net earnings.......... $ 1,900,331 $ 1,539,443 $ 3,867,469 $ 516,402 $ 1,235,694 =========== =========== ============ ============= ============= Net earnings per common share......... $ 0.83 $ 0.67 $ 0.88 $ 0.15 $ 0.26 =========== =========== ============ ============= ============= Weighted average common shares outstanding.......... 2,300,000 2,300,000 4,417,643 3,451,233 4,743,154 =========== =========== ============ ============= =============
The accompanying notes to consolidated financial statements are an integral part of these consolidated financial statements. F-3 SIMON TRANSPORTATION SERVICES INC. CONSOLIDATED STATEMENTS OF FINANCIAL POSITION
SEPTEMBER 30, -------------------------- DECEMBER 31, 1995 1996 1996 ------------ ------------ ------------ (UNAUDITED) ASSETS Current Assets: Cash............................... $ 350,380 $ 5,571,431 $ 4,107,994 Receivables, net of allowance for doubtful accounts of $115,000, $66,000, and $48,000 respectively...................... 7,331,701 13,261,974 14,256,016 Operating supplies................. 639,915 428,123 425,371 Prepaid expenses and other......... 416,945 1,302,492 2,322,690 Deferred tax asset................. -- 627,883 627,883 ------------ ------------ ------------ Total current assets............. 8,738,941 21,191,903 21,739,954 ------------ ------------ ------------ Property and Equipment, at cost: Land............................... 2,710,071 2,918,804 2,928,804 Revenue equipment.................. 63,591,169 58,779,032 53,700,875 Buildings and improvements......... 4,796,379 8,639,875 11,375,793 Office furniture and equipment..... 2,116,518 2,766,218 2,790,525 ------------ ------------ ------------ 73,214,137 73,103,929 70,795,997 Less accumulated depreciation and amortization...................... (21,014,556) (16,390,209) (14,960,370) ------------ ------------ ------------ 52,199,581 56,713,720 55,835,627 ------------ ------------ ------------ Other Assets......................... 498,473 317,645 951,995 ------------ ------------ ------------ $ 61,436,995 $ 78,223,268 $ 78,527,576 ============ ============ ============ LIABILITIES AND STOCKHOLDERS' EQUITY Current Liabilities: Current portion of long-term debt.. $ 8,577,770 $ 2,892,300 $ 2,927,734 Current portion of capitalized lease obligations................. 12,389,442 3,760,250 3,725,397 Accounts payable................... 1,369,252 1,691,900 1,731,341 Income taxes payable............... -- 2,191,984 781,531 Accrued liabilities................ 1,835,620 2,324,918 2,249,987 Accrued claims payable............. 1,296,575 1,602,344 1,512,132 ------------ ------------ ------------ Total current liabilities........ 25,468,659 14,463,696 12,928,122 ------------ ------------ ------------ Long-Term Debt, net of current portion............................. 7,135,935 15,433,145 17,328,692 ------------ ------------ ------------ Capitalized Lease Obligations, net of current portion................ 19,799,823 15,342,293 14,030,684 ------------ ------------ ------------ Deferred Income Taxes.............. -- 3,880,653 3,880,653 ------------ ------------ ------------ Commitments (Note 7) Stockholders' Equity: Preferred stock, $.01 par value, 5,000,000 shares authorized, none issued.............................. -- -- -- Class A Common Stock, $.01 par value, 20,000,000 shares authorized, 427,839, 2,870,507, and 2,872,757 shares issued, respectively...................... 4,278 28,705 28,728 Class B Common Stock, $.01 par value, 5,000,000 shares authorized, 1,872,161 shares issued............................ 18,722 18,722 18,722 Additional paid-in capital......... 735,292 25,282,496 25,302,723 Retained earnings.................. 8,274,286 3,773,558 5,009,252 ------------ ------------ ------------ Total stockholders' equity....... 9,032,578 29,103,481 30,359,425 ------------ ------------ ------------ $ 61,436,995 $ 78,223,268 $ 78,527,576 ============ ============ ============
The accompanying notes to consolidated financial statements are an integral part of these consolidated financial statements. F-4 SIMON TRANSPORTATION SERVICES INC. CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
CLASS A CLASS B ADDITIONAL TOTAL COMMON COMMON COMMON PAID-IN RETAINED TREASURY STOCKHOLDERS' STOCK STOCK STOCK CAPITAL EARNINGS STOCK EQUITY -------- ------- ------- ----------- ---------- -------- ------------- Balance, September 30, 1993................... $149,852 $ -- $ -- $ -- $5,611,880 $(25,764) $ 5,735,968 Distributions to stockholders of S corporation......... -- -- -- -- (1,438,974) -- (1,438,974) Net Earnings........... -- -- -- -- 3,146,244 -- 3,146,244 -------- ------- ------- ----------- ---------- -------- ----------- Balance, September 30, 1994................... 149,852 -- -- -- 7,319,150 (25,764) 7,443,238 Distributions to stockholders of S corporation......... -- -- -- -- (1,593,611) -- (1,593,611) Acquisition of Freight Sales, Inc. through issuance of 22,308 shares of common stock (Note 1).............. 160,000 -- -- -- -- -- 160,000 Payment of notes payable to stockholders through issuance of 66,225 shares of common stock (Note 9).............. 474,204 -- -- -- -- -- 474,204 Recapitalization of capital stock, 700,000 Class A shares and 2,850,000 Class B shares of Common Stock issued for 3,550,000 shares of common stock (Note 1).............. (784,056) 7,000 28,500 722,792 -- 25,764 -- Pro rata contribution of 272,161 shares of Class A Common Stock and 977,839 shares of Class B Common Stock by stockholders (Note 1).................... -- (2,722) (9,778) 12,500 -- -- -- Net Earnings........... -- -- -- -- 2,548,747 -- 2,548,747 -------- ------- ------- ----------- ---------- -------- ----------- Balance, September 30, 1995................... -- 4,278 18,722 735,292 8,274,286 -- 9,032,578 Distributions to stockholders of S corporation......... -- -- -- -- (605,060) -- (605,060) Sale of Common Stock in initial public offering, net of issuance costs........ -- 24,420 -- 19,696,318 -- -- 19,720,738 Change in tax status... -- -- -- 4,844,593 (4,844,593) -- -- Exercise of stock options............... -- 7 -- 6,293 -- -- 6,300 Net Earnings........... -- -- -- -- 948,925 -- 948,925 -------- ------- ------- ----------- ---------- -------- ----------- Balance, September 30, 1996................... -- 28,705 18,722 25,282,496 3,773,558 -- 29,103,481 Exercise of stock options (unaudited)... -- 23 -- 20,227 -- -- 20,250 Net earnings (unaudited)........... -- -- -- -- 1,235,694 -- 1,235,694 -------- ------- ------- ----------- ---------- -------- ----------- Balance, December 31, 1996 (unaudited)....... $ -- $28,728 $18,722 $25,302,723 $5,009,252 $ -- $30,359,425 ======== ======= ======= =========== ========== ======== ===========
The accompanying notes to consolidated financial statements are an integral part of these consolidated financial statements. F-5 SIMON TRANSPORTATION SERVICES INC. CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED FOR THE THREE MONTHS ENDED SEPTEMBER 30, DECEMBER 31, ------------------------------------- ---------------------------- 1994 1995 1996 1995 1996 ----------- ----------- ----------- ------------- ------------- (UNAUDITED) (UNAUDITED) Cash Flows From Operat- ing Activities: Net earnings.......... $ 3,146,244 $ 2,548,747 $ 948,925 $ (2,402,141) $ 1,235,694 Adjustments to recon- cile net earnings to net cash provided by operating activi- ties: Depreciation and am- ortization........... 6,856,673 7,222,887 5,919,494 1,728,200 1,513,545 Changes in assets and liabilities: (Increase) decrease in receivables, net................ (752,748) (477,913) (5,930,273) (187,658) 93,458 (Increase) decrease in operating sup- plies.............. (71,633) (166,726) 211,792 63,178 2,752 Increase in prepaid expenses and oth- er................. (22,397) (117,628) (885,547) (1,783,916) (1,020,198) Increase in deferred tax asset.......... -- -- (627,883) -- -- Decrease (increase) in other assets.... 99,225 (464,990) 180,828 373,306 (634,350) Increase (decrease) in accounts pay- able............... 274,652 (577,613) 322,648 271,588 39,441 Increase (decrease) in income taxes payable............ -- -- 2,191,984 -- (1,410,453) Increase (decrease) in accrued liabili- ties............... 326,248 17,700 489,298 (231,730) (74,931) Increase (decrease) in accrued claims payable............ 498,654 277,903 305,769 (92,300) (90,212) Increase in deferred income taxes....... -- -- 3,880,653 3,351,427 -- ----------- ----------- ----------- ------------- ------------ Net cash provided by (used in) operating activities....... 10,354,918 8,262,367 7,007,688 1,089,954 (345,254) ----------- ----------- ----------- ------------- ------------ Cash Flows From Invest- ing Activities: Purchase of property and equipment........ (8,332,284) (6,338,014) (23,149,090) (1,131,139) (3,731,952) Proceeds from the sale of property and equipment............ 2,224,519 7,594,684 18,499,863 837,500 2,009,000 ----------- ----------- ----------- ------------- ------------ Net cash used in investing activi- ties............. (6,107,765) 1,256,670 (4,649,227) (293,639) (1,722,952) ----------- ----------- ----------- ------------- ------------ Cash Flows From Financ- ing Activities: Proceeds from issu- ance of long-term debt................. 13,553,287 3,764,916 19,666,814 -- 2,628,684 Principal payments on long-term debt....... (10,818,948) (4,653,591) (12,775,333) (10,232,605) (697,703) Net borrowings (payments) under line-of-credit ...... 9,313 2,570,529 (4,279,741) (4,279,741) -- Principal payments under capitalized lease obligations.... (5,779,042) (9,309,717) (18,871,127) (3,558,523) (1,346,462) Net proceeds from is- suance of Class A Common Stock......... -- -- 19,727,037 19,716,753 20,250 Distributions to stockholders......... (1,438,973) (1,593,611) (605,060) (605,060) -- ----------- ----------- ----------- ------------- ------------ Net cash (used in) provided by financing activities....... (4,474,363) (9,221,474) 2,862,590 1,040,824 604,769 ----------- ----------- ----------- ------------- ------------ Net (Decrease) Increase In Cash............... (227,210) 297,563 5,221,051 1,837,139 (1,463,437) Cash at Beginning of Period................ 280,027 52,817 350,380 350,380 5,571,431 ----------- ----------- ----------- ------------- ------------ Cash at End of Period.. $ 52,817 $ 350,380 $ 5,571,431 $ 2,187,519 $ 4,107,994 =========== =========== =========== ============= ============ Supplemental Disclosure of Cash Flow Informa- tion: Cash paid during the period for inter- est.................. $ 3,150,503 $ 3,440,685 $ 2,847,583 $ 820,383 $ 526,424 Cash paid during the period for income taxes................ -- -- -- -- 1,891,923 Supplemental Schedule of Noncash Investing and Financing Activities: Equipment acquired through capitalized lease obligations.... $ 4,379,060 $11,479,970 $ 5,784,405 $ 5,784,406 $ -- Sale of equipment in exchange for receiv- able paid ........... $ -- $ -- $ -- $ 2,211,000 $ 1,087,500
The accompanying notes to consolidated financial statements are an integral part of these consolidated financial statements. F-6 SIMON TRANSPORTATION SERVICES INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (1) DESCRIPTION OF THE COMPANY, ACQUISITIONS, AND RECAPITALIZATION Simon Transportation Services Inc. was incorporated in Nevada on August 15, 1995 to acquire all of the outstanding capital stock of Dick Simon Trucking, Inc., a Utah corporation, through a transaction intended to qualify as a transfer to a controlled corporation. The accompanying consolidated financial statements present the consolidated financial position and results of operations of Simon Transportation Services Inc. and Dick Simon Trucking, Inc., its wholly owned subsidiary (collectively, the "Company"). All intercompany accounts and transactions have been eliminated in consolidation. The Company is a truckload carrier that specializes in premium service, primarily through temperature-controlled transportation predominantly for major shippers in the U.S. food industry. R. D. Simon Trucking Historically, the accompanying financial statements included the combined accounts of Dick Simon Trucking, Inc. and R. D. Simon Trucking (the "Affiliate"). The Affiliate was a sole proprietorship owned by Richard D. Simon, the majority stockholder of the Company. The Affiliate leased tractors, trailers and terminal and shop facilities to the Company. On April 19, 1995, the Company entered into an exchange agreement with its majority stockholder to acquire all of the assets and liabilities of the Affiliate in exchange for 753,135 shares of Common Stock of the Company. In exchange for the issuance of the common stock, the Company assumed ownership of assets with an estimated fair value of approximately $8,500,000 and liabilities of approximately $3,100,000. The Company has accounted for the acquisition of the Affiliate as a reorganization of entities under common control and, accordingly, the financial statements for all periods presented have been adjusted to reflect the combination of the entities at their historical bases. Freight Sales, Inc. In connection with the above mentioned exchange agreement, the Company also acquired Freight Sales, Inc. ("Freight Sales"), a company owned by the adult children of the majority stockholder of the Company, which children are also minority stockholders of the Company. The Company issued 22,308 shares of common stock in exchange for all of the outstanding stock of Freight Sales. The Company has accounted for the acquisition of Freight Sales under the purchase method of accounting and, accordingly, the acquired asset values of $160,000 are presented in these financial statements as of the acquisition date at their respective fair values in relation to the purchase price. No intangible assets were recorded in this acquisition. As part of the transaction, Freight Sales was merged into the Company and ceased to exist as a legal entity. The Company has omitted the pro forma results of operations required by Accounting Principles Board Opinion No. 16 because the transaction was immaterial to the Company's consolidated financial statements. Recapitalization In August 1995, the Board of Directors approved a reverse stock split of one-for-3.37 shares of common stock, and a recapitalization of the Company. All references in the consolidated financial statements to the number of shares of common stock have been restated to reflect this reverse stock split. The post-recapitalization authorized capital stock for the Company consists of 20,000,000 shares of $.01 par value Class A Common Stock with one vote per share voting rights; 5,000,000 shares of $.01 par value F-7 SIMON TRANSPORTATION SERVICES INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) Class B Common Stock with two votes per share voting rights; and 5,000,000 shares $.01 par value preferred stock. In connection with this recapitalization, the Company issued 700,000 shares of Class A and 2,850,000 shares of Class B Common Stock in exchange for all of the previously outstanding shares of common stock. All of the Class B and 39,641 shares of Class A Common Stock were issued to the majority stockholder of the Company. On September 30, 1995, the Company's stockholders contributed on a pro rata basis 272,161 shares of Class A and 977,839 shares of Class B Common Stock to the Company. This contribution was made to reduce the number of shares of the Company's common stock prior to its initial public offering. All contributed shares were retired by the Company. Immediately prior to the effective date of the Company's initial public offering, the Company issued 427,839 shares of Class A and 1,872,161 shares of Class B Common Stock of Simon Transportation Services Inc. to the existing shareholders of Dick Simon Trucking, Inc. in exchange for all of the outstanding capital stock of Dick Simon Trucking, Inc. in a transaction intended to qualify as a transfer to a controlled corporation under Section 351 of the Internal Revenue Code. This transaction was consummated on November 17, 1995, and resulted in a capital stock structure identical to that reflected in the accompanying September 30, 1995 consolidated balance sheet. On November 17, 1995, the Company completed its initial public offering of 2,441,968 shares of Class A Common Stock which generated net proceeds of $19,720,738 after deducting underwriting commissions and other expenses. A majority of the proceeds were used to pay off certain long-term debt (see Note 4). (2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES Use of Estimates in the Preparation of Financial Statements The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expense during the reporting period. Actual results could differ from these estimates. Revenue Recognition and Significant Customers Freight charges and related direct freight expenses are recognized as revenue and operating expense when freight is delivered at a destination point. One customer accounted for approximately 15, 19, and 18 percent of operating revenue in fiscal years 1994, 1995, and 1996, respectively. At September 30, 1996, the Company had accounts receivable outstanding with this customer totaling $1,793,808. Another customer accounted for approximately 17 and 12 percent of operating revenue in fiscal years 1994 and 1995, respectively. Operating Supplies Operating supplies consist primarily of tires, fuel and maintenance parts for revenue equipment which are stated at the lower of first-in, first-out (FIFO) cost or market value. Property and Equipment Property and equipment are recorded at cost and depreciated based on the straight-line method over their estimated useful lives, taking into consideration salvage values for purchased property and residual values for equipment held under capitalized leases. Leasehold improvements are amortized over the terms of the respective lease or the lives of the assets, whichever is shorter. F-8 SIMON TRANSPORTATION SERVICES INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) Expenditures for routine maintenance and repairs are charged to operating expense as incurred. Major renewals and betterments are capitalized and depreciated over their estimated useful lives. Upon retirement or other disposition of property and equipment, the cost and accumulated depreciation are removed from the accounts, and any gain or loss is recorded as an adjustment to depreciation and amortization. Net gains from the disposition of equipment in the amounts of $229,386, $885,439, and $2,447,765 for the fiscal years ended September 30, 1994, 1995, and 1996, respectively, have been included in depreciation and amortization in the accompanying statements of earnings and cash flows. The estimated useful lives of property and equipment are as follows: Revenue equipment.................. 3-7 years Buildings and improvements......... 30 years Office furniture and equipment..... 5-8 years
Tires purchased as part of revenue equipment are capitalized as a cost of the equipment. Replacement tires are expensed when placed in service. Fair Value of Financial Instruments The carrying amounts reported in the accompanying statements of financial position for cash, accounts receivable, and accounts payable approximate fair values because of the immediate or short-term maturities of these financial instruments. The carrying amounts of the Company's long-term debt also approximate fair values based on current rates for similar debt. Insurance Coverage and Accrued Claims Payable The Company acts as a self-insurer for auto liability, workers' compensation, tractor physical damage, trailer physical damage, and cargo damage claims up to $100,000, $100,000, $25,000, $10,000 and $10,000, respectively, per single occurrence. Liability in excess of these amounts is assumed by the insurance underwriter up to applicable policy limits. The Company maintains loss prevention programs in an effort to minimize this risk. The Company estimates and accrues a liability for its share of ultimate settlements using all available information including the services of a third- party insurance risk claims administrator to assist in establishing reserve levels for each occurrence based on the facts and circumstances of the occurrence coupled with the Company's past history of such claims. The Company accrues for workers' compensation and automobile liabilities when reported, typically the same day as the occurrence. Additionally, the Company accrues an estimated liability for incurred but not reported claims. Expense depends upon actual loss experience and changes in estimates of settlement amounts for open claims which have not been fully resolved. The Company provides for adverse loss developments in the period when new information so dictates. The Company had outstanding letters of credit related to insurance coverage totaling $950,000 at September 30, 1996. These letters of credit mature at various times through November 1996 and renew annually unless terminated by either party. Recent Accounting Pronouncement In March 1995, the Financial Accounting Standards Board issued Statement of Financial Accounting Standards No. 121, "Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of" ("SFAS No. 121"). SFAS No. 121 is required to be adopted for fiscal years beginning after F-9 SIMON TRANSPORTATION SERVICES INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) December 15, 1995, with early adoption permitted. The effect of implementing SFAS No. 121 is not expected to be material to the Company's financial position and results of operations when adopted. (3) INCOME TAXES Effective October 1, 1990, Dick Simon Trucking, Inc. elected for federal and state income tax purposes to include its taxable earnings with that of its stockholders (an S corporation election). Accordingly, from that date to November 16, 1995, the Company made no provision for income taxes in its financial statements. The Company's policy was to make distributions to its stockholders in amounts at least equal to the stockholders' income taxes that were attributable to the net earnings of the Company. The Company recorded such distributions when they were declared to the stockholders. Concurrently with the acquisition of all of the capital stock of Dick Simon Trucking, Inc. by Simon Transportation Services Inc. (see Note 1), the S corporation status of the Company terminated and the Company became subject to federal and state income taxes. Upon termination of the Company's S corporation status, the Company recognized deferred income tax assets and liabilities in accordance with Statement of Financial Accounting Standards No. 109 ("SFAS No. 109"), "Accounting for Income Taxes." The Company recorded, in accordance with SFAS No. 109, a net deferred income tax liability and the related deferred income tax expense in the quarter in which the change occurred. Additionally, in connection with the termination of the S corporation election, the Company reclassified its retained earnings to additional paid-in capital. The provision for income taxes includes the following components for the year ended September 30, 1996: Current tax provision: Federal.................................................. $1,758,933 State.................................................... 442,467 ---------- --- 2,201,400 ---------- --- Deferred tax provision: Federal.................................................. 254,592 State.................................................... 18,063 Net deferred tax liability upon termination of S corporation status.................................... 2,980,115 ---------- --- 3,252,770 ---------- --- Provision for income taxes................................. $5,454,170 ========== ===
The following is a reconciliation between the statutory Federal income tax rate of 34 percent and the effective rate which is derived by dividing the provision for income taxes by earnings before provision for income taxes: Computed "expected" provision for income taxes at the statutory rate........ $2,177,053 Increase (decrease) in income taxes resulting from: Net deferred tax liability upon termination of S corporation status.... 2,980,115 State income taxes, net of federal income tax benefit... 303,950 Other, net....... (6,948) ---------- --- Provision for income taxes....... $5,454,170 ========== ===
F-10 SIMON TRANSPORTATION SERVICES INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) The components of the net deferred income tax liability as of November 17, 1995 and September 30, 1996, (the date the S corporation status terminated) are as follows:
NOVEMBER 17, SEPTEMBER 30, 1995 1996 ------------ ------------- Deferred income tax assets: Claims reserve........................ $ 292,435 $ 423,768 Other reserves and accruals........... 78,877 204,115 ----------- ----------- --- Total deferred income tax assets........ 371,312 627,883 Deferred income tax liability: Difference between book and tax basis of property and equipment............ (3,351,427) (3,880,653) ----------- ----------- --- Net deferred income tax liability....... $(2,980,115) $(3,252,770) =========== =========== ===
(4) LONG-TERM DEBT Long-term debt consists of the following and the construction loan discussed in Note 5:
SEPTEMBER 30, ------------------------ 1995 1996 ----------- ----------- Notes payable to a bank, interest ranging from 6.24 percent to 7.20 percent, payable in monthly installments through April 2001, secured by revenue equipment.......................................... $ -- $12,331,568 Note payable to a bank, interest at LIBOR plus 1.1 percent (6.48 percent at September 30, 1996), payable in monthly installments through May 2001, secured by revenue equipment....................... -- 1,816,874 Notes payable to a finance company, interest ranging from LIBOR plus 1.75 to 2.75 percent (7.53 to 8.53 percent at September 30, 1995), secured by revenue equipment and land, paid in full during fiscal year 1996............................................... 4,310,763 -- Notes payable to a finance company, interest at a variable rate based on the 30-day commercial paper rate plus 2.75 percent (8.7 percent at September 30, 1995), secured by revenue equipment, paid in full during fiscal year 1996.... 2,571,969 -- Notes payable to a bank, interest ranging from prime plus .75 to 1 percent (9.50 to 9.75 percent at September 30, 1995), secured by land and buildings, paid in full during fiscal year 1996............... 1,395,846 -- Notes payable to a finance company, interest at prime plus .35 percent (9.10 percent at September 30, 1995), secured by revenue equipment, paid in full during fiscal year 1996....................... 1,039,181 -- Notes payable to a bank, interest ranging from prime plus .25 to .75 percent (9 to 9.5 percent at September 30, 1995), secured by revenue equipment, office equipment and land, paid in full during fiscal year 1996................................... 1,037,671 -- Notes payable to a bank, interest rates ranging from 7.20 to 8.25 percent, payable in monthly installments through October 1996, secured by revenue equipment.................................. 416,258 7,126 Line-of-credit totaling $7,500,000 at September 30, 1995, interest at LIBOR plus 2 percent (7.78 percent at September 30, 1995) secured by accounts receivable, paid in full during fiscal year 1996 ... 4,279,470 -- Other............................................... 662,547 -- ----------- ----------- 15,713,705 14,155,568 Less current portion................................ (8,577,770) (2,892,300) ----------- ----------- $ 7,135,935 $11,263,268 =========== ===========
F-11 SIMON TRANSPORTATION SERVICES INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) Scheduled principal payments of long-term debt are as follows:
YEARS ENDING SEPTEMBER 30, AMOUNT -------------------------- ----------- 1997............................................................ $ 2,892,300 1998............................................................ 2,997,601 1999............................................................ 3,178,059 2000............................................................ 3,371,044 2001............................................................ 1,716,564 ----------- $14,155,568 ===========
(5) CONSTRUCTION LOAN AND LINE OF CREDIT The Company has entered into a construction loan agreement with a bank to finance the construction of a new headquarters, shop, terminal and driver recruitment and orientation center. The agreement provides a $10 million credit facility that will convert to a term loan upon completion of the facility. Until construction is completed, no payments are due and all accrued interest is added to the loan balance. As of September 30, 1996, and December 31, 1996, the Company had borrowed $4,169,877 and $6,798,560 (unaudited) respectively, under the agreement. The construction loan contains various restrictive covenants including maximum debt to tangible net worth and minimum tangible net worth requirements. As of September 30, 1996, the Company was in compliance with all covenants under the construction loan agreement. The Company has an unsecured line of credit for $5,000,000. As of September 30, 1996, the Company had not drawn on this line of credit. (6) CAPITALIZED LEASE OBLIGATIONS Certain revenue equipment is leased under capitalized lease obligations. The following is a summary of assets held under capital lease agreements:
SEPTEMBER 30, ------------------------- 1995 1996 ------------ ----------- Revenue equipment................................ $ 48,678,031 $28,823,541 Less accumulated amortization.................... (14,433,957) (7,313,862) ------------ ----------- $ 34,244,074 $21,509,679 ============ ===========
The following is a schedule by year of future minimum lease payments under capitalized leases together with the present value of the minimum lease payments at September 30, 1996:
YEARS ENDING SEPTEMBER 30, AMOUNT -------------------------- ----------- 1997........................................................... $ 4,869,050 1998........................................................... 8,195,453 1999........................................................... 3,340,570 2000........................................................... 3,463,770 2001........................................................... 1,843,795 ----------- Total minimum lease payments..................................... 21,712,638 Less amount representing interest................................ (2,610,094) ----------- Present value of minimum lease payments.......................... 19,102,544 Less current portion............................................. (3,760,251) ----------- $15,342,293 ===========
F-12 SIMON TRANSPORTATION SERVICES INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) (7) COMMITMENTS Operating Leases The Company is committed under noncancelable operating leases involving certain revenue equipment. Rent expense for noncancelable operating leases was $3,153,238, $2,562,440, and $3,997,352 for fiscal years 1994, 1995, and 1996, respectively. Aggregate future lease commitments are $11,483,479, $11,406,441, $8,359,297, $2,548,065 and $2,153,511 for the years ending September 30, 1997, 1998, 1999, 2000 and 2001, respectively. Orders for Revenue Equipment As of September 30, 1996, the Company had placed orders for fiscal years 1997 and 1998 to purchase revenue equipment at an estimated total purchase price of $77,000,000. The revenue equipment is to be delivered during fiscal years 1997 and 1998. Approximately $21,000,000 of the new revenue equipment will be used to replace older revenue equipment and the balance represents incremental additions to the Company's fleet. These orders may be canceled by the Company without penalty upon written notification any time prior to 85 days before the revenue equipment's scheduled delivery. (8) STOCK PLANS Incentive Stock Plan On May 31, 1995, the Board of Directors and stockholders approved and adopted the Dick Simon Trucking, Inc. Incentive Stock Plan (the "Plan"). The Plan originally reserved 400,000 shares of Class A Common Stock for issuance thereunder and approximately 2,000 of such shares have been issued pursuant to option exercises. The Board of Directors or its designated committee administers the Plan and has the discretion to determine the employees and officers who will receive awards, the type of awards (incentive stock options, non-statutory stock options, restricted stock awards, reload options, other stock based awards, and other benefits) to be granted and the term, vesting provisions and exercise prices. Outside Director Stock Plan On August 16, 1995, the Company adopted an Outside Director Stock Plan, under which each director who is not an employee of the Company will receive an annual option to purchase 1,000 shares of the Company's Class A Common Stock at 85% of the market price at the end of the month immediately preceding the grant date, except for 1995, in which the exercise price was $9.00. The Company originally reserved 25,000 shares of Class A Common Stock for issuance under the Outside Director Stock Plan and 1,000 of such shares have been issued pursuant to exercise of an option. The following table summarizes the combined stock option activity for both plans from inception of the plans through December 31, 1996:
NUMBER OF OPTIONS PRICE PER SHARE ----------------- --------------- Outstanding at September 30, 1994..... -- -- Granted............................. 230,900 $ 9.00 ------- ------------- Outstanding at September 30, 1995..... 230,900 $ 9.00 Granted............................. 3,000 $ 9.00 Exercised........................... (700) $ 9.00 Forfeited........................... (5,500) $ 9.00 ------- ------------- Outstanding at September 30, 1996..... 227,700 $ 9.00 Granted (unaudited)................. 144,000 $13.18-$16.00 Exercised (unaudited)............... (2,250) $ 9.00 Forfeited (unaudited)............... (2,750) $ 9.00 ------- ------------- Outstanding at December 31, 1996 (unaudited).......................... 363,700 $ 9.00-$16.00 ======= =============
F-13 SIMON TRANSPORTATION SERVICES INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) As of December 31, 1996, approximately 42,450 (unaudited) options are exercisable. Executive Bonuses On May 3, 1996, the Board of Directors approved an executive bonus program whereby 5 percent of earnings before provision for income taxes will be distributed to executive officers as bonuses. The executive bonus program will be effective beginning in fiscal year 1997. (9) RELATED PARTY TRANSACTIONS Historically the Company maintained life insurance policies on certain officers (other than Richard D. Simon) and an employee. The Company was named as the beneficiary under each of the policies. The cash surrender value for each policy accrued to the insured officer or employee. During February 1995, the Company canceled the policies and issued notes payable totaling $475,000 to the insured individuals for the amount of the cash surrender value of the policies. During April 1995, the Company issued 66,225 shares of common stock to these individuals as satisfaction of the notes payable. During fiscal years 1994 and 1995 the Company paid lease payments of $90,000 and $30,000, respectively, to Freight Sales. Prior to the reorganization described in Note 1, the Company leased certain real estate and revenue equipment from the Affiliate. During fiscal years 1994 and 1995, the Company paid rent of approximately $912,000 and $532,000 to the Affiliate. All such amounts have been eliminated in the accompanying consolidated financial statements because of related ownership and the single purpose of the entities. (10) EMPLOYEE BENEFIT PLAN The Company has adopted a defined contribution plan, the Dick Simon Trucking, Inc. 401(k) Profit Sharing Plan (the "401(k) Plan"). All employees who have completed one year of service and have reached age 21 are eligible to participate in the 401(k) Plan. Newly eligible employees may first begin participating in the 401(k) Plan on the earlier of January 1 or July 1 after meeting the eligibility requirements. Under the 401(k) Plan, employees are allowed to make contributions of up to 15 percent of their annual compensation; the Company may make matching contributions equal to a discretionary percentage, to be determined by the Company, of the employee's salary reductions. The Company may also make additional discretionary contributions to the 401(k) Plan. All amounts contributed by a participant are fully vested at all times. The participant becomes 20 percent vested in any matching or discretionary contributions after two years of service. This vesting percentage increases to 100 percent after six years of service. During fiscal years 1994, 1995, and 1996, the Company contributed $94,500, $141,240, and $192,389, respectively, to the 401(k) Plan. (11) PRO FORMA INFORMATION (UNAUDITED) Pro Forma Provision for Income Taxes Contemporaneously with the November 17, 1995 effective date of the Company's initial public offering, the S corporation stockholders terminated their S corporation election. Accordingly, the pro forma provision for income taxes has been determined in accordance with SFAS No. 109, assuming the Company had been taxed as a C corporation for federal and state income tax purposes using an effective income tax rate of 39.6 percent. The pro forma provision for income taxes does not reflect the $2,980,115 charge to earnings for deferred taxes the Company recorded upon termination of its S corporation status. F-14 SIMON TRANSPORTATION SERVICES INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONCLUDED) Pro Forma Net Earnings Per Common Share and Weighted Average Common Shares Outstanding As discussed in Note 1, in 1995, the Company recapitalized its capital stock. Accordingly, the historical presentation of net earnings per common share would not present a meaningful comparison due to the recapitalization. However, pro forma net earnings per common share is reflected in the accompanying consolidated financial statements in order to present net earnings per common share as if the recapitalization, contribution of Common Stock, and all Common Stock issuances through September 30, 1995 had been effective for all periods presented. F-15 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- NO DEALER, SALESPERSON, OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY IN- FORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY OF THE UNDER- WRITERS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITA- TION OF ANY OFFER TO BUY ANY SECURITY OTHER THAN THE COMMON STOCK BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED, OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY OFFER OR SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. --------------- TABLE OF CONTENTS
PAGE ---- Prospectus Summary....................................................... 3 Cautionary Statement Regarding Forward-Looking Statements................ 6 Risk Factors............................................................. 6 Holding Company Formation................................................ 10 Dividend Policy.......................................................... 10 Use of Proceeds.......................................................... 11 Price Range of Common Stock.............................................. 11 Capitalization........................................................... 12 Selected Consolidated Financial and Operating Data....................... 13 Management's Discussion And Analysis of Financial Condition And Results of Operations........................................................... 15 Selected Quarterly Financial Data........................................ 21 Industry Overview........................................................ 21 Business................................................................. 22 Management............................................................... 28 Certain Transactions..................................................... 32 Principal and Selling Stockholders....................................... 34 Description of Capital Stock............................................. 35 Shares Eligible For Future Sale.......................................... 38 Underwriting............................................................. 39 Legal Matters............................................................ 40 Experts.................................................................. 40 Index to Consolidated Financial Statements............................... F-1
- ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- 2,000,000 SHARES SIMON TRANSPORTATION SERVICES INC. CLASS A COMMON STOCK --------------- PROSPECTUS --------------- MORGAN KEEGAN & COMPANY, INC. A.G. EDWARDS & SONS, INC. GEORGE K. BAUM & COMPANY FEBRUARY , 1997 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. Set forth below is an itemized statement of all expenses to be incurred by the Registrant in connection with the sale and distribution of the securities being registered by this Registration Statement, other than the underwriting discounts and commissions. All amounts are estimated except the SEC registration fee, the NASD filing fee and the NASDAQ filing fee. The Selling Stockholders will not bear any expenses of the Offering other than the underwriters' discount applicable to the shares sold by them. SEC registration fee............................................ $ 11,500 NASD filing fee................................................. 4,295 NASDAQ filing fee............................................... 17,500 Blue sky fees and expenses...................................... 10,000 Accounting fees and expenses.................................... 40,000 Legal fees and expenses......................................... 50,000 Printing and engraving.......................................... 40,000 Registrar and transfer agent fees............................... 3,000 Miscellaneous................................................... 23,705 -------- Total....................................................... $200,000 ========
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Article VII of the Registrant's Articles of Incorporation and Article X of the Registrant's Bylaws provide that the Registrant's directors and officers shall be indemnified against liabilities they may incur while serving in such capacities to the fullest extent allowed by the Nevada General Corporation Law. Under these indemnification provisions, the Registrant is required to indemnify its directors and officers against any reasonable expenses (including attorney fees) incurred by them in the defense of any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, to which they were made a party, or in defense of any claim, issue, or matter therein, by reason of the fact that they are or were a director or officer of the Registrant or while a director or officer of the Registrant are or were serving at the Registrant's request as a director, officer, partner, trustee, employee, or agent of another corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise unless it is ultimately determined by a court of competent jurisdiction that they failed to act in a manner they believed in good faith to be in, or not opposed to, the best interests of the Registrant, and with respect to any criminal proceeding, had reasonable cause to believe their conduct was lawful. The Registrant will advance expenses incurred by directors or officers in defending any such action, suit, or proceeding upon receipt of written confirmation from such officers or directors that they have met certain standards of conduct and an undertaking by or on behalf of such officers or directors to repay such advances if it is ultimately determined that they are not entitled to indemnification by the Registrant. The Registrant may, through indemnification agreements, insurance, or otherwise, provide additional indemnification. The Registrant currently provides insurance liability coverage in the amount of $2,000,000 for its officers and directors. Article VI of the Registrant's Articles of Incorporation eliminates, to the fullest extent permitted by law, the liability of directors and officers for monetary or other damages for breach of fiduciary duties to the Registrant and its stockholders as a director or officer. ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES. Dick Simon Trucking, Inc. issued 753,135 shares of Common Stock effective April 19, 1995, to Richard D. Simon in exchange for all of the assets of R. D. Simon Trucking, a sole proprietorship. The R. D. Simon assets consisted of terminals previously leased by the Company at Atlanta, Georgia; Phoenix, Arizona; Fontana, II-1 California; Jerome, Idaho; and Salt Lake City, Utah; the 55 acres in Salt Lake City on which the Company plans to relocate in 1997; and four tractors and 24 trailers. The R. D. Simon assets had a net value of $5,401,886 ($8,526,924 less $3,125,038 in related debt). Dick Simon Trucking, Inc. issued 5,577 shares of Common Stock effective April 19, 1995, to each of Kelle A. Simon, Lyn Simon, Sherry L. Simon Bokovoy, and Richard D. Simon, Jr. in exchange for all of the outstanding capital stock of Freight Sales, Inc., a Utah corporation. The stock was valued at the $160,000 estimated fair market value of the three tractors and one parcel real estate owned by Freight Sales, and Freight Sales had no recorded liabilities. Dick Simon Trucking, Inc. issued 13,245 shares of Common Stock effective April 19, 1995, to each of Kelle A. Simon, Lyn Simon, Sherry L. Simon Bokovoy, and Alban B. Lang in exchange for their $95,000 promissory notes representing the cash value of canceled life insurance policies payable to each of them by the Company. The Company reserved 400,000 shares of Class A Common Stock for issuance pursuant to the Incentive Stock Plan, and to date has awarded options covering (i) 115,000 shares to Kelle A. Simon, Lyn Simon, Sherry L. Simon Bokovoy, Richard D. Simon, Jr., and Alban B. Lang (23,000 each) at an exercise price of $9.00 per share (such options become exercisable between June 1, 1996 and June 1, 2000 at the rate of 20% per year), (ii) 135,000 shares to Kelle A. Simon, Lyn Simon, Sherry L. Simon Bokovoy, Richard D. Simon, Jr., and Alban Lang (27,000 each) at an exercise price of $16.00 per share (such options become exercisable between December 18, 1997 and December 18, 2001 at a rate of 20% per year), and (iii) 224,700 shares to employees at an exercise price of $9.00 per share (such options become exercisable between June 1, 1996 and June 1, 2000 at a rate of 20% per year). All shares were issued in private offerings, which did not involve the public offer or sale of securities, in reliance upon the exemption from registration afforded by Section 4(2) of the Securities Act. No underwriters, brokers or finders were involved in the above transactions. The shares issued above do not reflect the subsequent contribution to capital of shares of outstanding Common Stock by the existing stockholders as of September 30, 1995. See "Holding Company Formation." ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES. (c) EXHIBITS
NUMBER DESCRIPTION ------ ----------- 1 Underwriting Agreement. 2.1+ Exchange Agreement dated as of April 19, 1995, among Richard D. Simon, Trustee of the Richard D. Simon Revocable Trust, UTAD 2/12/93, and Richard D. Simon as a sole proprietorship d/b/a R. D. Simon Trucking, Kelle A. Simon, A. Lyn Simon, Sherry L. Simon Bokovoy, Richard D. Simon, Jr., Alban B. Lang, and Dick Simon Trucking, Inc., a Utah corporation. 2.2+ Formation Agreement dated May 31, 1995, among Richard D. Simon, Trustee of the Richard D. Simon Trust, UTAD 2/12/93, Kelle Allen Simon, Arthur Lynn Simon (also known as Lyn Simon), Sherry Lee Simon Bokovoy, Richard D. Simon, Jr. (also known as Richard Dick Simon, or "King" Simon) and Alban Lang. 3.1+ Articles of Incorporation. 3.2+ Bylaws. 4.1+ Articles of Incorporation. 4.2+ Bylaws. 4.3+ Formation Agreement dated May 31, 1995, among Richard D. Simon, Trustee of the Richard D. Simon Trust, UTAD 2/12/93, Kelle Allen Simon, Arthur Lynn Simon (also known as Lyn Simon), Sherry Lee Simon Bokovoy, Richard D. Simon, Jr. and Alban Lang.
II-2
NUMBER DESCRIPTION ------ ----------- 5 Opinion, including consent of Scudder Law Firm, P.C., counsel to Simon Transportation Services Inc., as to the legality of the securities being registered. 10.1+ Outside Director Stock Option Plan. 10.2+ Incentive Stock Plan. 10.3+ 401(k) Plan. 10.4+ Exchange Agreement dated April 19, 1995, among Richard D. Simon, Trustee of the Richard D. Simon Revocable Trust, UTAD 2/12/93, and Richard D. Simon as a sole proprietorship d/b/a R. D. Simon Trucking, Kelle A. Simon, A. Lyn Simon, Sherry L. Simon Bokovoy, Richard D. Simon, Jr., Alban B. Lang, and Dick Simon Trucking, Inc., a Utah corporation. 10.5+ Formation Agreement dated May 31, 1995, among Richard D. Simon, Trustee of the Richard D. Simon Trust, UTAD 2/12/93, Kelle Allen Simon, Arthur Lynn Simon (also known as Lyn Simon), Sherry Lee Simon Bokovoy, Richard D. Simon, Jr. and Alban Lang. 10.6+ Plan of Merger dated April 19, 1995 between the Richard D. Simon Trust, UTAD 2/12/93, Kelle A. Simon, Lyn Simon, Richard D. Simon, Jr., Sherry Simon Bokovoy, and Alban Lang as officers, directors, and/or shareholders of Dick Simon Trucking, Inc., a Utah corporation. 10.7# Loan Agreement (Line of Credit) dated April 29, 1996 (replaced loan agreement dated December 1, 1995) between U.S. Bank of Utah and Simon Transportation Services Inc. 10.8# Loan Agreement (Headquarters Loan) dated May 23, 1996 between U.S. Bank of Utah and Dick Simon Trucking, Inc. 10.9* Description of Executive Bonus Program. 21+ List of subsidiaries. 23.1 Consent of Scudder Law Firm, P.C. (included in their opinion filed as Exhibit 5 to this Registration Statement). 23.2 Consent of Arthur Andersen LLP, independent public accountants. 24 Power of Attorney (included on signature page of this Registration Statement).
- -------- + Filed as an exhibit to the registrant's Registration Statement on Form S-1, Registration No. 33-96876, effective November 17, 1995, and incorporated herein by reference. # Filed as an exhibit to the registrant's Quarterly Report on Form 10-Q for the period ended June 30, 1996, Commission File No. 0-27208, and incorporated herein by reference. * Filed as an exhibit to the registrant's Quarterly Report on Form 10-Q for the period ended December 31, 1996, and incorporated herein by reference. (b) FINANCIAL STATEMENT SCHEDULES All schedules are omitted as the required information is inapplicable or the information is presented in the consolidated financial statements or related notes. ITEM 17. UNDERTAKINGS. 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 provisions set forth in Item 14, or otherwise, the Registrant has been advised 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 II-3 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 of whether such indemnification by it is against public policy as expressed in the Securities Act, and the Registrant will be governed by the final adjudication of such issue. The Registrant hereby undertakes to provide the Underwriters at the closing specified in the Underwriting Agreement, certificates in such denominations and registered in such names as required by the Underwriters to permit prompt delivery to each purchaser. The Registrant hereby undertakes that: (a) For purposes of determining any liability under the Securities Act, the information omitted from the form of Prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of Prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective. (b) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of Prospectus 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. II-4 SIGNATURES PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT HAS DULY CAUSED THIS REGISTRATION STATEMENT ON FORM S-1 TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF SALT LAKE CITY, STATE OF UTAH, ON JANUARY 16, 1997. Simon Transportation Services Inc. /s/ Richard D. Simon By: _________________________________ Richard D. Simon, Chairman of the Board, President, and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below hereby appoints Richard D. Simon, Alban B. Lang, and Mark A. Scudder, and each of them, as attorneys-in-fact with full power of substitution, to execute in their respective names, individually and in each capacity stated below, any and all amendments (including post-effective amendments) to this Registration Statement as the attorney-in-fact and to file any such amendment to the Registration Statement, exhibits thereto and documents required in connection therewith with the Securities and Exchange Commission, granting unto said attorneys-in-fact and their substitutes, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and their substitutes 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 THE CAPACITIES AND ON THE DATES INDICATED. SIGNATURES TITLE DATE /s/ Richard D. Simon Chairman of the January 16, - ------------------------------------- Board, President, 1997 RICHARD D. SIMON and Chief Executive Officer; Director (principal executive officer) /s/ Alban B. Lang Chief Financial January 16, - ------------------------------------- Officer, Treasurer, 1997 ALBAN B. LANG and Secretary; Director (principal financial and accounting officer) /s/ Irene Warr Director January 16, - ------------------------------------- 1997 IRENE WARR /s/ H. J. Frazier Director January 16, - ------------------------------------- 1997 H. J. FRAZIER II-5 EXHIBITS
NUMBER DESCRIPTION ------ ----------- 1 Underwriting Agreement. 2.1+ Exchange Agreement dated as of April 19, 1995, among Richard D. Simon, Trustee of the Richard D. Simon Revocable Trust, UTAD 2/12/93, and Richard D. Simon as a sole proprietorship d/b/a R. D. Simon Trucking, Kelle A. Simon, A. Lyn Simon, Sherry L. Simon Bokovoy, Richard D. Simon, Jr., Alban B. Lang, and Dick Simon Trucking, Inc., a Utah corporation. 2.2+ Formation Agreement dated May 31, 1995, among Richard D. Simon, Trustee of the Richard D. Simon Trust, UTAD 2/12/93, Kelle Allen Simon, Arthur Lynn Simon (also known as Lyn Simon), Sherry Lee Simon Bokovoy, Richard D. Simon, Jr. (also known as Richard Dick Simon, or "King" Simon) and Alban Lang. 3.1+ Articles of Incorporation. 3.2+ Bylaws. 4.1+ Articles of Incorporation. 4.2+ Bylaws. 4.3+ Formation Agreement dated May 31, 1995, among Richard D. Simon, Trustee of the Richard D. Simon Trust, UTAD 2/12/93, Kelle Allen Simon, Arthur Lynn Simon (also known as Lyn Simon), Sherry Lee Simon Bokovoy, Richard D. Simon, Jr. and Alban Lang. 5 Opinion, including consent of Scudder Law Firm, P.C., counsel to Simon Transportation Services Inc., as to the legality of the securities being registered. 10.1+ Outside Director Stock Option Plan. 10.2+ Incentive Stock Plan. 10.3+ 401(k) Plan. 10.4+ Exchange Agreement dated April 19, 1995, among Richard D. Simon, Trustee of the Richard D. Simon Revocable Trust, UTAD 2/12/93, and Richard D. Simon as a sole proprietorship d/b/a R. D. Simon Trucking, Kelle A. Simon, A. Lyn Simon, Sherry L. Simon Bokovoy, Richard D. Simon, Jr., Alban B. Lang, and Dick Simon Trucking, Inc., a Utah corporation. 10.5+ Formation Agreement dated May 31, 1995, among Richard D. Simon, Trustee of the Richard D. Simon Trust, UTAD 2/12/93, Kelle Allen Simon, Arthur Lynn Simon (also known as Lyn Simon), Sherry Lee Simon Bokovoy, Richard D. Simon, Jr. and Alban Lang. 10.6+ Plan of Merger dated April 19, 1995 between the Richard D. Simon Trust, UTAD 2/12/93, Kelle A. Simon, Lyn Simon, Richard D. Simon, Jr., Sherry Simon Bokovoy, and Alban Lang as officers, directors, and/or shareholders of Dick Simon Trucking, Inc., a Utah corporation. 10.7# Loan Agreement (Line of Credit) dated April 29, 1996 (replaced loan agreement dated December 1, 1995) between U.S. Bank of Utah and Simon Transportation Services Inc. 10.8# Loan Agreement (Headquarters Loan) dated May 23, 1996 between U.S. Bank of Utah and Dick Simon Trucking, Inc. 10.9* Description of Executive Bonus Program. 21* List of subsidiaries. 23.1 Consent of Scudder Law Firm, P.C. (included in their opinion filed as Exhibit 5 to this Registration Statement). 23.2 Consent of Arthur Andersen LLP, independent public accountants. 24 Power of Attorney (included on signature page of this Registration Statement).
- -------- + Filed as an exhibit to the registrant's Registration Statement on Form S-1, Registration No. 33-96876, effective November 17, 1995, and incorporated herein by reference. # Filed as an exhibit to the registrant's Quarterly Report on Form 10-Q for the period ended June 30, 1996, Commission File No. 0-27208, and incorporated herein by reference. * Filed as an exhibit to the registrant's Quarterly Report on Form 10-Q for the period ended December 31, 1996, and incorporated herein by reference. EX-1 2 UNDERWRITING AGREEMENT EXHIBIT 1 SIMON TRANSPORTATION SERVICES INC. ---------------------------------- 2,000,000 SHARES CLASS A COMMON STOCK ($.01 PAR VALUE) UNDERWRITING AGREEMENT ---------------------- ________________, 1997 Morgan Keegan & Company, Inc. A.G. Edwards & Sons, Inc. George K. Baum & Company As Representative of the Underwriters Morgan Keegan & Company, Inc. 50 Front Street Memphis, Tennessee 38103 Dear Sirs: Simon Transportation Services Inc., a Nevada corporation (the "Company") and Richard D. Simon, Trustee of the Richard D. Simon Revocable Trust UTAD 2/12/93, Kelle A. Simon, Lyn Simon, Richard D. Simon, Jr., Sherry L. Simon Bokovoy and Alban Lang (the "Selling Shareholders"), propose to sell to the several underwriters named in Schedule I (collectively, the "Underwriters") an aggregate of 2,000,000 shares of the Company's Class A common stock, $.01 par value per share (the "Common Stock"), as set forth in Schedule I hereto (such 2,000,000 shares are herein referred to as the "Firm Shares"). The Firm Shares are to be sold to each Underwriter, acting severally and not jointly, in such amounts as are set forth in Schedule I opposite the name of such Underwriter. Solely for the purpose of covering overallotments in the sale of the Firm Shares, the Company and Richard D. Simon further propose to grant pro rata the right to said Underwriters to purchase up to an additional 100,000 and 200,000, respectively, Shares (the "Option Shares") identical to the Firm Shares. The Firm Shares and Option Shares are herein sometimes referred to as the "Shares." The Company was incorporated in Nevada in August 1995. Pursuant to the Exchange Agreement dated April 19, 1995, the stockholders of Dick Simon Trucking, Inc., a Utah corporation, and Freight Sales, Inc., a Utah corporation, and Richard D. Simon, as the sole proprietor of R. D. Simon Trucking, entered into a reorganization intended to qualify as a tax-free transfer to a controlled corporation under Section 351 of the Internal Revenue Code of 1986, as amended. In this reorganization, the present stockholders of Dick Simon Trucking, Inc. contributed certain assets in exchange for stock, and subsequent to such stock issuances, the stockholders entered into a Formation Agreement dated May 31, 1995, whereby they agreed to contribute all of the issued and outstanding stock of Dick Simon Trucking, Inc. to the Company effective immediately prior to the effectiveness of this offering. As a result of this reorganization, Dick Simon Trucking, Inc. will become a wholly owned subsidiary of the Company (the "Subsidiary"). The "Company" refers to Simon Transportation Services Inc. and the Subsidiary, unless the context clearly indicates otherwise. Of the several underwriters named in Schedule I for whom you are acting as representatives (the "Representatives"), you have advised the Company and the Selling Shareholders that you are authorized to enter into this Agreement on behalf of the several Underwriters and that Morgan Keegan & Company, Inc. has authority to execute this Agreement, bind the Underwriters and Representatives and take all actions on behalf of the Representatives referenced in this Agreement. Section 1. Representations and Warranties of the Company and the Subsidiary. The Company and the Subsidiary represent and warrant to and agree with each of the Underwriters that: (a) A registration statement on Form S-1 (File No. 333-________) with respect to the Shares, including a preliminary form of prospectus, has been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the "1933 Act"), and the applicable rules and regulations (the "1933 Act Regulations") of the Securities and Exchange Commission (the "Commission") and has been filed with the Commission; and such amendments to such registration statement as may have been required, if any, prior to the date hereof have been filed with the Commission, and such amendments have been similarly prepared. Copies of such registration statement and amendment or amendments and of each related preliminary prospectus, and the exhibits, financial statements, and schedules, as finally amended and revised, have been delivered to you. The Company has prepared in the same manner, and proposes so to file with the Commission, one of the following: (i) prior to effectiveness of such registration statement, a further amendment thereto, including the form of final prospectus, or (ii) a final prospectus in accordance with Rules 430A and 424(b) of the 1933 Act Regulations. As filed, such amendment and form of final prospectus, or such final prospectus, shall include all Rule 430A Information (as defined below) and, except to the extent that you shall agree in writing to a modification, shall be in all respects in the form furnished to you prior to the date and time that this Agreement was executed and delivered by the parties hereto, or, to the extent not completed at such date and time, shall contain only such specific additional information and other changes (beyond that contained in the latest preliminary prospectus) as the Company shall have previously advised you in writing would be included or made therein. The term "Registration Statement" as used in this Agreement shall mean such registration statement at the time such registration statement becomes effective and, in the event any post-effective amendment thereto becomes effective prior to the Closing Time (as hereinafter defined), shall also mean such registration statement as so amended; provided, however, that such term shall also include all Rule 430A Information deemed to be included in such registration statement at the time such registration statement becomes effective as provided by Rule 430A of the 1933 Act Regulations. The term "Preliminary Prospectus" shall mean any preliminary prospectus referred to in the preceding paragraph and any preliminary prospectus included in the Registration Statement at the time it becomes effective that omits Rule 430A Information. The term "Prospectus" as used in this Agreement shall mean the prospectus relating to the Shares in the form in which it is first filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations or, if no filing pursuant to Rule 424(b) of the 1933 Act Regulations is required, shall mean the form of final prospectus included in the Registration Statement at the time such Registration Statement becomes effective. The term "Rule 430A Information" means information with respect to the Shares and the offering thereof permitted pursuant to Rule 430A of the 1933 Act Regulations to be omitted from the Registration Statement when it becomes effective. (b) No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission and no proceedings for that purpose have been instituted or threatened by the Commission or the state securities authority of any jurisdiction, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to untrue statements or omissions of material facts to the extent they are corrected in the Prospectus first filed pursuant to Rule 424(b) under the 1933 Act Regulations, or to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter expressly for use in the Registration Statement. 2 (c) When the Registration Statement shall become effective, when the Prospectus is first filed pursuant to Rule 424(b) of the 1933 Act Regulations, when any amendment to the Registration Statement becomes effective, and when any supplement to the Prospectus is filed with the Commission, and at each Date of Delivery (as defined in Section 3), (i) the Registration Statement, the Prospectus, and any amendments thereof and supplements thereto will conform in all material respects with the applicable requirements of the 1933 Act and the 1933 Act Regulations, and (ii) neither the Registration Statement nor the Prospectus nor any amendment or supplement thereto, will contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter expressly for use in the Registration Statement. (d) The Company and the Subsidiary have been duly incorporated and each is validly existing as a corporation in good standing under the laws of its respective state of incorporation with all requisite corporate power and authority to own, lease, and license its properties and to conduct its business as now conducted and as described in the Registration Statement and the Prospectus, and each has been duly qualified to do business and is in good standing as a foreign corporation in each other jurisdiction in which the ownership or leasing of its properties or the nature or conduct of its business requires such qualification, and where the failure to do so would have a material adverse effect on the Company and the Subsidiary taken as a whole. The Company does not own or control, directly or indirectly, any corporation, association or other entity, and upon effectiveness of the offering contemplated hereby will acquire all of the capital stock of the Subsidiary. (e) The Company has full legal right, power, and authority to enter into this Agreement, to issue, sell, and deliver the Shares as provided herein, and to consummate the transactions contemplated herein. This Agreement has been duly authorized, executed, and delivered by the Company and constitutes the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except to the extent that the indemnification provisions set forth in Section 9 of this Agreement may be limited by applicable law or equitable principles, and except as enforceability may be limited by bankruptcy, reorganization, moratorium, or similar laws affecting the enforceability of creditors' rights generally and rules of law governing specific performance, injunctive relief, and other equitable remedies. Each consent, approval, authorization, order, designation, or filing by or with any governmental agency or body necessary for the valid authorization, issuance, sale, and delivery of the Shares, the execution, delivery, and performance of this Agreement by the Company, and the consummation by the Company and the Subsidiary of the transactions contemplated hereby, has been made or obtained and is in full force and effect, except such as may be necessary to make the Registration Statement effective (and maintain it as effective) under the 1933 Act and to qualify the Shares for public offering by you under state securities or "blue sky" laws or by the National Association of Securities Dealers, Inc. ("NASD") in connection with the purchase and distribution of the Shares by the Underwriters. Neither the issuance, sale, and delivery of the Shares nor the execution, delivery, and performance of this Agreement by the Company nor the consummation by the Company or the Subsidiary of the transactions contemplated hereby will result in a breach or violation of any of the terms and provisions of, or constitute a default by the Company or the Subsidiary under the Articles of Incorporation or Bylaws of the Company or Subsidiary, or will result in a breach or violation (that has not been waived) of any of the terms or provisions of, or constitute default by the Company or the Subsidiary under, any indenture, mortgage, deed of trust, loan agreement, note, lease, or other agreement or instrument to which the Company or the Subsidiary is a party or to which it or its properties is subject, or of any statute, judgment, decree, order, rule, or regulation of any court or governmental agency or body applicable to the Company or the Subsidiary or any of their respective properties. (f) The Company has Class A common stock and Class B common stock issued and outstanding as set forth in the Registration Statement. The Company has no other issued and outstanding capital stock. The Company has an authorized, issued, and outstanding capitalization as set forth in the Prospectus under the 3 caption "Capitalization" as of the date therein; all the issued and outstanding shares of capital stock of the Company, including the Shares to be sold by the Selling Shareholders, have been duly authorized and validly issued, are fully paid and nonassessable and conform to the description of the Common Stock contained in the Prospectus and the rights set forth in the instruments defining the same; the Shares to be sold by the Company and the Selling Shareholders when issued and delivered by the Company and the Selling Shareholders, and paid for pursuant to this Agreement, will be validly issued, fully paid, and nonassessable and will conform in all material respects to the description thereof contained in the Prospectus. No preemptive rights of stockholders exist with respect to the Shares. No person or entity holds a right to require or participate in the registration under the 1933 Act of the Shares and no person holds a right to require registration under the 1933 Act of any shares of Common Stock of the Company at any other time. No person or entity has a right of participation or first refusal with respect to the sale of the Shares by the Company. None of the issued shares of capital stock of the Company has been issued in violation of any preemptive or similar rights; all shares of Common Stock of the Company subject to outstanding options or warrants have been duly authorized and reserved for issuance, and, when issued in accordance with the terms of the applicable option or warrant, will be validly issued, fully paid, and nonassessable and will not be issued in violation of any preemptive rights (contractual or other); there is no outstanding option, warrant, or other right calling for the issuance of and no commitment, plan, or arrangement to issue, any share of capital stock of the Company, or any security convertible into or exchangeable for capital stock of the Company, except as is disclosed in the Registration Statement and the Prospectus (g) The financial statements of the Company (including the related notes and schedules) included in the Registration Statement and the Prospectus present fairly, in all material respects, the financial position of the Company as of the dates indicated and the results of its operations and its cash flows for the periods specified, all in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved. The amounts in the Prospectus under the captions "Prospectus Summary -- Summary Consolidated Financial and Operating Data" and "Selected Consolidated Financial and Operating Data" are accurately computed, fairly present the information shown therein and, to the extent derived therefrom, have been determined on a basis consistent with the financial statements included in the Registration Statement and the Prospectus. No other financial statements or schedules are required by Form S-1 or otherwise to be included in the Registration Statement, the Prospectus, or any Preliminary Prospectus. (h) Arthur Andersen LLP, which has examined and is reporting upon the audited financial statements and schedules included in the Registration Statement certifying that they are, and were during the periods covered by their reports included in the Registration Statement and Prospectus, independent public accountants with respect to the Company and the Subsidiary within the meaning of the 1933 Act and the 1933 Act Regulations. (i) Neither the Company nor the Subsidiary has sustained, since September 30, 1996, any material loss or interference with its business from fire, explosion, flood, hurricane, accident, or other calamity, whether or not covered by insurance, or from any labor dispute or arbitrators' or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus, and except as otherwise stated in the Registration Statement and Prospectus, there has not been (i) any material change in the capital stock, long-term debt, obligations under capital leases, or short-term borrowings of the Company or the Subsidiary, other than from equipment obligations incurred in the ordinary course of business and draws upon the Subsidiary's line of credit; (ii) any material adverse change, or any development which could reasonably be seen as involving a prospective material adverse change, in or affecting the business, prospects, properties, assets, results of operations, or condition (financial or other) of the Company or the Subsidiary; (iii) any liability or obligation, direct or contingent, incurred, or undertaken by the Company or the Subsidiary which is material to the business or condition (financial or other) of the Company or the Subsidiary, except for liabilities or 4 obligations incurred in the ordinary course of business; (iv) any declaration or payment of any dividend or distribution of any kind on or with respect to its capital stock; or (v) any transaction that is material to the Company or the Subsidiary, except transactions in the ordinary course of business. (j) Neither the Company nor the Subsidiary is in violation of its Articles of Incorporation or Bylaws; and, as of the date hereof, no material default exists, and no event has occurred, nor state of facts exists, which, with notice or after the lapse of time to cure or both, would constitute a material default in the due performance and observance of any obligation, agreement, covenant, consideration, or condition contained in any indenture, mortgage, deed of trust, loan agreement, note, lease, or other agreement or instrument to which the Company or the Subsidiary is a party or by which they or any of their properties is subject, except as may be occasioned by the transactions contemplated and described in the Registration Statement and Prospectus, and for which waivers or consents may be obtained, and no violation exists of any law, order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality, or court, domestic, or foreign, in any such case where the consequences of such violation or default is likely to materially adversely affect the assets, properties, results of operation, financial condition, or business prospects of the Company or the Subsidiary. (k) To the Company's actual knowledge, the Company and the Subsidiary are in material compliance with all federal, state, and local laws, ordinances, rules, regulations, and other governmental requirements relating to pollution, control of chemicals, management of waste, discharges of materials into the environment, health, safety, natural resources, and the environment (collectively, "Environmental Laws"), and the Company and the Subsidiary have, and are in compliance with, all licenses, permits, registrations, and government authorizations necessary to operate under all applicable Environmental Laws. Except as otherwise disclosed in the Prospectus, neither the Company nor the Subsidiary has received any written or oral notice from any governmental entity or any other person and there is no pending or threatened claim, litigation, or any administrative agency proceeding that: alleges a violation of any Environmental Laws by the Company or the Subsidiary; alleges the Company or the Subsidiary is a liable party or a potentially responsible party under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. (S) 9601, et seq., or any state superfund law; has resulted in or could result in the attachment of an environmental lien on any real property owned, leased, or controlled by the Company or the Subsidiary; or alleges the occurrence of contamination of any of such real property, damage to natural resources, property damage, or personal injury based on their activities or the activities of their predecessors or third parties (whether at the real property or elsewhere) involving Hazardous Materials, whether arising under the Environmental Laws, common law principles, or other legal standards. (l) The Company and the Subsidiary have good and marketable title to all real property owned by them, free and clear of all liens and encumbrances, which are material in amount, and represent amounts due and payable, except such as are reflected in the Registration Statement. Each parcel of real property owned, leased, or controlled by the Company and the Subsidiary and each improvement thereon complies with all applicable codes, laws, and regulations (including, without limitation, building and zoning codes, laws and regulations, and laws relating to access to facilities located on such real property) except if and to the extent disclosed in the Prospectus and except for such failures to comply that would not have a material adverse impact on the Company or the Subsidiary. Neither the Company nor the Subsidiary has knowledge of any pending or threatened condemnation proceedings, zoning change, or other proceeding or action that will in any manner affect the size of, use of, improvements on, construction on, or access to such real property and improvements, except such proceedings or actions that would not have a material adverse effect on the assets, properties, results of operation, financial condition, or business prospects of the Company or the Subsidiary. (m) Any real property and buildings held under lease by the Company or the Subsidiary are held by it under valid, subsisting, and enforceable leases with such exceptions as are not material and do not interfere in any material respect with the use made and proposed to be made of such property and buildings by the 5 Company or the Subsidiary; such leases conform in material respect to the description thereof, if any, set forth in the Registration Statement; and no notice has been given or material claim asserted by anyone adverse to the rights of the Company or the Subsidiary under any of the leases or affecting the rights of the Company or the Subsidiary to the continued possession of the leased property. (n) Except as described in the Prospectus, there is not pending or, to the Company's and the Subsidiary's actual knowledge, threatened, any action, suit, proceeding, inquiry, or investigation, against the Company, the Subsidiary, or any of their respective officers, directors, or significant stockholders or to which the properties, assets or rights of the Company or Subsidiary are subject, before or brought by any court or governmental agency or body or board of arbitrators, which could result in any material adverse change in the Company and the Subsidiary, or which could materially adversely affect the consummation of the transactions contemplated by this Agreement. (o) There are no contracts or other documents required by the 1933 Act or the 1933 Act Regulations to be described in or incorporated by reference into the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which have not been accurately described in all material respects or incorporated or filed as required. The agreements to which the Company and the Subsidiary are parties described in the Registration Statement and the Prospectus are valid and enforceable in all material respects by the Company or the Subsidiary, and, to the Company's and Subsidiary's actual knowledge, the other contracting party or parties thereto are not in material breach or default under any of such agreements. (p) The Company and the Subsidiary own, possess, or have obtained all material permits, licenses, franchises, certificates, consents, orders, approvals, and other authorizations of governmental or regulatory authorities as are necessary to own or lease, as the case may be, and to operate its properties and to carry on their business as presently conducted. Neither the Company nor the Subsidiary has received any notice of proceedings relating to revocation or modification of any such licenses, permits, certificates, consents, orders, approvals, or authorizations which revocation or modification could materially and adversely affect the assets, properties, results of operation, financial condition, or business prospects of the Company or the Subsidiary. (q) The Company and the Subsidiary own or possess appropriate licenses or other rights to use all patents, trademarks, service marks, trade names, copyrights, software, and design licenses, trade secrets, manufacturing processes, other intangible property rights and know-how (collectively "Intangibles") necessary to entitle the Company and the Subsidiary to conduct their business now, and as proposed to be conducted or operated as described in the Prospectus, and neither the Company nor the Subsidiary has received any notice of infringement of or conflict with (and knows of no such infringement of or conflict with) asserted rights of others with respect to any Intangibles which could materially and adversely affect the assets, properties, results of operation, financial condition, or business prospects of the Company or the Subsidiary. (r) The systems of internal accounting controls utilized by the Company and the Subsidiary are sufficient to meet the objectives of internal accounting control insofar as those objectives pertain to the prevention or detection of errors or irregularities in amounts that would be material in relation to the Company's financial statements; and, neither the Company, the Subsidiary nor any employee or agent of the Company or Subsidiary has made any payment of funds of the Company or Subsidiary or received or retained any funds and no funds of the Company or the Subsidiary have been set aside to be used for any payment in violation of any law, rule, or regulation. (s) The Company and the Subsidiary have filed on a timely basis all federal, state, local, and foreign income and franchise tax returns required to be filed through the date hereof and has paid all taxes shown as due thereon; and no tax deficiency, has been asserted against the Company or the Subsidiary, nor does the Company or the Subsidiary know of any tax deficiency which is likely to be asserted against the Company or the Subsidiary which if determined adversely to the Company or Subsidiary could materially adversely affect 6 the assets, properties, results of operation, financial condition, or business prospects of the Company or the Subsidiary. All tax liabilities are adequately provided for on the books of the Company and the Subsidiary. (t) The Company and the Subsidiary maintain insurance of the types and in the amounts that have been disclosed to you, such amounts are deemed by the Company, the Subsidiary and the Selling Shareholders, appropriate for their businesses, are in excess of all statutory requirements, and all policies are in full force and effect. (u) No labor problem exists with Company's or Subsidiary's employees or, to the Company's and Subsidiary's actual knowledge, is threatened or imminent that could materially adversely affect the Company or the Subsidiary, and neither the Company nor the Subsidiary is aware of any existing, threatened, or imminent labor disturbance by the employees of any of its principal suppliers, contractors, or customers that could be expected to materially adversely affect the business, prospects, properties, assets, results of operation, or condition (financial or other) of the Company or Subsidiary. (v) The Company has obtained the agreement of each of the Selling Stockholders that, for a period of 180 days from the date on which the Registration Statement becomes effective such persons will not, without your prior written consent, directly, or indirectly sell, offer to sell, grant any option for the sale of, or otherwise dispose of any shares of the Company's Common Stock (including, without limitation, shares of Common Stock which may be deemed to be beneficially owned by such person in accordance with the Securities Exchange Act of 1934 Regulations); provided that during such period such persons may make gifts of shares of Common Stock upon the condition that the donees agree to be bound by the foregoing restriction in the same manner as it applies to such persons. (w) Neither the Company nor its officers, directors, stockholders, or affiliates have taken and will not take, directly or indirectly, any action designed to, or that might be reasonably expected to, cause or result in or constitute, the stabilization or manipulation of the price of the Shares to facilitate the sale or resale of the Shares. (x) The Shares have been approved for listing on The Nasdaq Stock Market (National Market) (the "NSM"), subject to official notice of issuance. (y) The Company and the Subsidiary have participated in the preparation of the Registration Statement and Prospectus and no facts have come to the attention of the Company or the Subsidiary which leads it to believe that the Registration Statement or the Prospectus, or any amendment thereto, as of their respective effective or filing dates, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (z) Neither the Company nor the Subsidiary has incurred any liability for a fee, commission, or other compensation on account of the employment of a broker or finder in connection with the transactions contemplated by this Agreement other than as contemplated hereby. Any certificate signed by any duly authorized officer of the Company and the Selling Shareholders, and delivered to you or to counsel for the Underwriters shall be deemed a representation and warranty by the Company and the Subsidiary, respectively, to each Underwriter as to the matters covered thereby. Section 2. Representations and Warranties of the Selling Shareholders. The Selling Shareholders represent and warrant to each Underwriter and agree that: (a) The Selling Shareholders have all right, power and authority necessary to execute and deliver this Agreement, to sell and deliver the Shares to be sold by them hereunder and to perform all other obligations 7 under this Agreement; the execution, delivery and performance of this Agreement by the Selling Shareholders will not conflict with, result in the creation or imposition of any lien, charge or encumbrance upon any of the Shares to be sold by the Selling Shareholders pursuant to the terms of, or constitute a default under, any agreement or other instrument, or any order, rule or regulation of any court or governmental agency having jurisdiction over the Selling Shareholders or the Selling Shareholders' properties; and except as required by the 1933 Act and applicable state securities laws, no consent, authorization or order of, or filing or registration with, any court or governmental agency is required (or, if required, has been obtained) for the execution, delivery and performance of this Agreement by the Selling Shareholders. (b) At the Closing Time, the Selling Shareholders will have good title to the Shares being sold by them hereunder; such Shares are, and at the Closing Time will be, validly authorized, issued and outstanding, fully paid and nonassessable Common Stock of the Company with no personal liability attaching to the ownership thereof; and, assuming that the Underwriters are bona fide purchasers under Section 8-203 of the Uniform Commercial Code, upon the delivery of and payment for such Shares as contemplated herein, such Underwriters will receive good title to the Shares purchased by them, respectively, from such Selling Shareholders, free and clear of any and all liens, encumbrances, security interests and adverse claims. (c) Without the prior written consent of the Underwriters, the Selling Shareholders and any affiliate controlled by them (other than the Company) will not sell or offer or contract to sell, except to the Underwriters pursuant to this Agreement, any securities of the Company which they beneficially own within 180 days after the effective date of the Registration Statement; the Selling Shareholders have not taken, and agree that they will not take, directly or indirectly, any action which might reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Stock of the Company. (d) Except as set forth in the Prospectus, the Selling Shareholders are disposing of their Shares hereunder for their own account and are not selling such Shares, directly or indirectly, for the benefit of the Company or the Underwriters. (e) To the extent that any statements or omissions made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto are made in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholders expressly for use therein, such Preliminary Prospectus, did, and the Registration Statement and the Prospectus and any amendment or supplement thereto will, when they become effective or are filed with the Commission, as the case may be, conform in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations and not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading. (f) The sale of the Shares by the Selling Shareholders pursuant to this Agreement is not prompted by any material information concerning the Company which is not set forth in the Prospectus. Section 3. Sale and Delivery of Shares to the Underwriters; Closing. (a) On the basis of the representations and warranties herein contained, and subject to the terms and conditions herein set forth, the Company and the Selling Shareholders agree to sell an aggregate of 2,000,000 firm shares to the Underwriters named in Schedule I hereto, and each such Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Shareholders, at a purchase price of $_____ per share, the number of Firm Shares set forth opposite the name of such Underwriter in Schedule I hereto. (b) On the basis of the representations and warranties herein contained, and subject to the terms and conditions herein set forth, the Company and Richard D. Simon hereby grants pro rata an option to the Underwriters, severally and not jointly, to purchase up to an additional 100,000 and 200,000 Option Shares 8 respectively on the same terms and conditions as the Firm Shares. The option hereby granted will expire if not exercised within the 30 day period after the first date on which the Firm Shares are released by you for sale to the public, by giving written notice to the Company. The option granted hereby may be exercised, in whole or in part (but not more than once), only for the purpose of covering the over-allotments that may be made in connection with the offering and distribution of the Firm Shares. The right to purchase may be exercised by your giving 48 hours prior written or telephonic notice (subsequently confirmed in writing) to the Company and Richard D. Simon. This notice of exercise shall set forth the number of Option Shares as to which the several Underwriters are exercising the option, and the time and date of payment and delivery thereof. Such time and date of delivery (the "Date of Delivery") shall be determined by you but shall not be earlier than the second business day after the date on which the notice of the exercise of the option shall have been given nor later than seven full business days after the exercise of such option, nor in any event prior to the Closing Time. If the option is exercised as to all or any portion of the Option Shares, the Option Shares as to which the option is exercised shall be purchased by the Underwriters, severally and not jointly, in their respective underwriting obligation proportions. (c) Payment of the purchase price for and delivery of the Firm Shares shall be made at the offices of Morgan Keegan & Company, Inc., 50 Front Street, Memphis, Tennessee 38103 or at such other place as shall be agreed upon by the Company and you, at 10:00 A.M., either (i) on the fourth full business day after the effective date of the Registration Statement, or (ii) at such other time not more than ten full business days thereafter as you and the Company shall determine (unless, in either case, postponed pursuant to Section 12) (such date and time of payment and delivery being herein called the "Closing Time"). In addition, in the event that any or all of the Option Shares are purchased by the Underwriters, payment of the purchase price for and delivery of the Option Shares shall be made at the offices of Morgan Keegan & Company, Inc. in the manner set forth above, or at such other place as the Company and you shall determine, on the Date of Delivery as specified in the notice from you to the Company. Payment for the Firm Shares and the Option Shares shall be made to the Company and Richard D. Simon by certified or official bank check or checks in New York Clearing House next day funds payable to the order of the Company or Richard D. Simon against delivery to you for the respective accounts of the Underwriters of the Shares to be purchased by them. (d) The Shares to be purchased by the Underwriters shall be in such denominations and registered in such names as you may request in writing at least three full business days before the Closing Time or the Date of Delivery, as the case may be. The Shares will be made available at the offices of Morgan Keegan & Company, Inc. or at such other place as Morgan Keegan & Company, Inc. may designate for examination and packaging not later than 10:00 A.M. at least two full business days prior to the Closing Time or the Date of Delivery, as the case may be. (e) After the Registration Statement becomes effective, you intend to offer the Shares to the public as set forth in the Prospectus, but after the secondary public offering of such Shares, you may from time to time increase or decrease the public offering price, in your sole discretion, by reason of changes in general market condition or otherwise. Section 4. Certain Covenants of the Company. The Company covenants and agrees with each Underwriter as follows: (a) The Company will use its best efforts to cause the Registration Statement to become effective (if not yet effective at the date and time that this Agreement is executed and delivered by the parties hereto). If the Company elects to rely upon Rule 430A of the 1933 Act Regulations or the filing of the Prospectus is otherwise required under Rule 424(b) of the 1933 Act Regulations, and subject to the provisions of Section 3(b) of this Agreement, the Company will comply with the requirements of Rule 430A and will file the Prospectus, properly completed, pursuant to the applicable provisions of Rule 424(b) within the time period prescribed, and will notify you immediately, and confirm the notice in writing, (i) when the Registration 9 statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission to amend the Registration Statement or amend or supplement the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the withdrawal thereof at the earliest possible moment. (b) The Company will not at any time file or make any amendment to the Registration Statement or any amendment or supplement to the Prospectus (i) if the Company has not elected to rely upon Rule 430A, or (ii) if the Company has elected to rely upon Rule 430A, to either the prospectus included in the Registration Statement at the time it becomes effective or to the Prospectus filed in accordance with Rule 424(b), in either case if you shall not have previously been advised and furnished a copy thereof a reasonable time prior to the proposed filing, or if you or counsel for the Underwriters shall object to such amendment or supplement. (c) The Company has furnished or will furnish to you, at its expense, as soon as available, as many signed copies of the Registration Statement as originally filed and of all amendments thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts, as you may reasonably request, and has furnished or will furnish to each Underwriter, one conformed copy of the Registration Statement as originally filed and of each amendment thereto (but without exhibits). (d) The Company will deliver to each Underwriter, at its expense, from time to time, as many copies of each Preliminary Prospectus as such Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver to each Underwriter, at its expense, as soon as the Registration Statement shall have become effective, and thereafter from time to time as requested during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as each Underwriter may reasonably request. In case you are required to deliver a prospectus within the nine-month period referred to in Section 10(a)(3) of the 1933 Act in connection with the sale of the Shares, the Company will prepare promptly upon request, but at the expense of the Underwriters, such amendment or amendments to the Registration Statement and such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the 1933 Act. (e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and in the Prospectus. If, at any time when a Prospectus is required by the 1933 Act to be delivered in connection with sales of the Shares, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to the provisions of Section 4(b), such amendment or supplement as may be necessary to correct such 10 untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements. (f) The Company will use its best efforts, in cooperation with you, to qualify the Shares for offering and sale under the applicable securities laws of such states and other jurisdictions as you may designate and to maintain such qualifications in effect for as long as may be necessary to complete the distribution of the Shares; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Shares have been qualified as above provided. (g) The Company will use the net proceeds received by it from the sale of the Shares in the manner specified in the Prospectus under the caption "Use of Proceeds." (h) During a period of five years from the date hereof, the Company will furnish to its stockholders, as soon as practicable after the end of each respective period, annual reports (including financial statements audited by independent public accountants), and unaudited quarterly reports of operations for each of the first three quarters of the fiscal year, and will furnish to you: (i) concurrently with furnishing such reports to its stockholders, statements of operations of the Company for each of the first three quarters in the form furnished to the Company's stockholders; (ii) concurrently with furnishing to its stockholders, a balance sheet of the Company as of the end of such fiscal year, together with statements of operations, of cash flows and of stockholders' equity of the Company for such fiscal year, accompanied by a copy of the certificate or report thereon of independent public accountants; (iii) as soon as they are available, copies of all reports (financial or otherwise) mailed to stockholders; (iv) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, any securities exchange or the NASD; (v) concurrently with its release, every material press release in respect of the Company or its affairs which is released or prepared by the Company; and (vi) any additional information of a public nature concerning the Company or its business that you may reasonably request. During such five-year period, the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company are consolidated with any subsidiaries, and shall be accompanied by similar financial statements for any significant subsidiary that is not so consolidated. (i) Except with respect to grants under the Company's Incentive Stock Plan and Outside Director Plan, for a period of 180 days from the date hereof, the Company will not, without your prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Common Stock or securities convertible into Common Stock, other than to the Underwriters pursuant to this Agreement and other than pursuant to employee benefit plans in existence on the date of this Agreement. (j) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Stock. (k) The Company will use it best efforts to maintain the listing of its shares of Common Stock on NSM. (l) The Company is familiar with the Investment Company Act of 1940, as amended, and the rules and regulations thereunder, and has in the past conducted its affairs, and will in the future conduct its affairs, in such a manner so as to ensure that the Company was not and will not be an "investment company" within the meaning of the Investment Company Act of 1940 and the rules and regulations thereunder. 11 (m) The Company will supply the Underwriters with copies of all correspondence to and from and all documents issued to and by the Commission or the Commission staff in connection with the registration of the Shares under the 1933 Act. Section 5. Covenants of the Selling Shareholders. The Selling Shareholders covenant: (a) To pay all taxes, if any, on the transfer and sale of the Shares to be sold by them hereunder; (b) To use reasonable efforts to cause the Registration Statement to become effective, to do and perform all things to be done and performed by the Selling Shareholders hereunder prior to the Closing Time and to satisfy all conditions precedent to the delivery of the Shares to be sold by the Selling Shareholders; and (c) Not to sell or offer or contract to sell or cause or permit their affiliates to sell or offer or contract to sell, except to the Underwriters pursuant to this Agreement, any Common Stock of the Company within 180 days after the effective date of the Registration Statement without the prior written consent of the Underwriters. Section 6. Payment of Expenses. (a) The Company will pay and bear all costs, fees, and expenses incident to the performance of its obligations under this Agreement, including (i) the fees, disbursements, and expenses of counsel and accountants in the preparation, printing, and filing of the Registration Statement (including financial statements and exhibits), as originally filed and as amended, the Preliminary Prospectuses and the Prospectus and any amendments or supplements thereto, and the cost of furnishing copies thereof to the Underwriters; (ii) the preparation, printing, and distribution of this Agreement, the Agreement Among Underwriters, the Selected Dealer Agreement, Blue Sky Memoranda, and any instruments relating to any of the foregoing (other than the fees and expenses of counsel for the Underwriters relating thereto); (iii) the issuance and delivery of the Shares to the Underwriters, including any transfer taxes payable upon the sale of the Shares to the Underwriters (other than transfer taxes on resales by the Underwriters); (iv) the fees and disbursements of the Company's counsel and accountants; (v) the qualification of the Shares under the applicable securities laws in accordance with Section 4(f) hereof and any filing for review of the offering with the NASD, including filing fees and fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the Blue Sky Memoranda up to a maximum of $10,000; (vi) the transfer agent's and registrar's fees and all miscellaneous expenses referred to in Item 14 of the Registration Statement; (vii) costs related to travel and lodging incurred by the Company and its representatives relating to meetings with and presentations to prospective purchasers of the Shares reasonably determined by the Underwriters to be necessary or desirable to effect the sale of the Shares to the public; (viii) all other costs and expenses incident to the performance of the Company's obligations hereunder (including costs incurred in closing the purchase of the Option Shares, if any) that are not otherwise specifically provided for in this section. The Company, upon your request, will provide funds in advance for filing fees in connection with "blue sky" qualifications and the NASD. It is understood, however, that the Underwriters will pay all their own costs and expenses, including the fees of their counsel, stock transfer, taxes on resale of any of the securities by them, and any advertising expenses connected with any offers that they make. (b) The Selling Shareholders shall pay their proportionate share of all underwriters' commissions relating to shares of the Company sold by such Selling Shareholders. (c) If the sale of Shares provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 7 hereof is not satisfied, because of any termination pursuant to Section 11 hereof or because of any refusal, inability, or failure on the part of the Company or the Selling Shareholders to perform any agreement herein or comply with any provision hereof other than by 12 reason of a default by any of the Underwriters, the Company and the Selling Shareholders will reimburse the Underwriters severally on demand for all reasonable out-of-pocket expenses, including fees and disbursements of Underwriters' counsel, reasonably incurred by the Underwriters in reviewing the Registration Statement and the Prospectus, and in investigating and making preparations for the marketing of the Shares. In no event, however, shall the liability of any Selling Shareholder for any expenses under this Section 6(c) exceed the lesser of (i) that proportion of the total of such expenses equal to the proportion of the total shares sold hereunder which is being sold by such Selling Shareholder, or (ii) the proceeds that should have been received by such Selling Shareholder from the Underwriters in the Offering based upon the price of the Company's stock on the date of termination of this Agreement pursuant to Section 11. Section 7. Conditions of Underwriters' Obligations. The obligations of the Underwriters to purchase and pay for the Shares that they have severally agreed to purchase pursuant to this Agreement (including any Option Shares as to which the option granted in Section 3 has been exercised and the Date of Delivery determined by you is the same as the Closing Time) are subject to the accuracy of the representations and warranties of the Company contained herein or in certificates of any officer of the Company delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to the following further conditions: (a) The Registration Statement shall have become effective not later than 5:30 P.M., eastern time, on the date of this Agreement or, with your consent, at a later time and date not later, however, than 5:30 P.M., eastern time, on the first business day following the date hereof, or at such later time or on such later date as you may agree to in writing; and at the Closing Time no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act and no proceedings for that purpose shall have been instituted or shall be pending or, to your knowledge or the knowledge of the Company shall be contemplated by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the satisfaction of counsel for the Underwriters. If the Company has elected to rely upon Rule 430A, a prospectus containing the Rule 430A Information shall have been filed with the Commission in accordance with Rule 424(b) (or a post- effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A). (b) At the Closing Time you shall have received the opinion of Scudder Law Firm, P.C., counsel for the Company and the Selling Shareholders, together with signed or reproduced copies of such opinion for each of the other Underwriters, in form and substance satisfactory to Baker, Donelson, Bearman & Caldwell, counsel for the Underwriters, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Nevada and has the requisite corporate power and authority to conduct its business as described in the Registration Statement and the Prospectus. The Company is duly qualified and in good standing as a foreign corporation in each other jurisdiction in which the ownership or leasing of its properties or the nature or conduct of its business makes such qualification necessary, and where the failure to be so qualified or in good standing would have a material adverse effect on the Company. (ii) The Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Utah and has the requisite corporate power and authority to conduct its business as described in the Registration Statement and the Prospectus. The Subsidiary is duly qualified and in good standing as a foreign corporation in each other jurisdiction in which the ownership or leasing of its properties or the nature or conduct of its business makes such qualification necessary, and where the failure to be so qualified or in good standing would have a material adverse effect on the Subsidiary. 13 (iii) The authorized capital stock of the Company is as set forth in the Registration Statement and the Prospectus under the caption "Description of Capital Stock," and the issued and outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and nonassessable. (iv) The Shares sold by the Company have been duly authorized and, when issued and delivered to the Underwriters pursuant to the Underwriting Agreement against payment of the consideration therefor as provided therein, will be validly issued, fully paid and nonassessable. (v) The issuance of the Shares in the manner contemplated by this Agreement is not subject to any preemptive rights arising under the Articles of Incorporation or Bylaws of the Company, or under any statute or by operation of law, or to our actual knowledge, under any contract or other instrument known to us to which the Company is subject or by which it or its assets are bound. (vi) No authorization, approval, or consent of any court or governmental authority or agency is required to be obtained by the Company in connection with the offering, issuance, or sale of the Shares by the Company, except such as may be required under the 1933 Act or the 1933 Act Regulations, state securities laws or by the NASD. (vii) Except as described in the Prospectus, such counsel does not actually know of any past, pending, or threatened action, suit, proceeding, inquiry, or investigation before any court or before or by any public, regulatory or governmental body or board against or involving the properties or business of the Company of a character required to be disclosed in the Prospectus or, as to threatened litigation, of a character which would be required to be disclosed if filed, or in either case which, if successful, would have a material adverse effect on the Company. (viii) Neither the issuance, sale, and delivery by the Company and the Selling Shareholders of the Shares, nor the execution, delivery, and performance of this Agreement, nor the consummation by the Company of any of the other transactions contemplated hereby will conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, encumbrance, claim or security interest upon any property or assets of the Company pursuant to any contract, indenture, mortgage, loan agreement, note, lease, or material agreement or other instrument actually known to such counsel to which the Company or the Selling Shareholders is a party or by which it is bound or to which any of the property of the Company or the Selling Shareholders is subject (unless such breach, default, or violation has been waived) nor will such action violate the provisions of the Articles of Incorporation or Bylaws of the Company, or, so far as is actually known to such counsel, any law, administrative rule, or regulation or arbitrators' or administrative or court decree, judgment, or order or material franchise or permit known to such counsel. To such counsel's actual knowledge, the Company is conducting its business so as to comply in all material respects with all applicable statutes and regulations, where the failure to so comply would have a material adverse effect upon the Company. (ix) The Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or is pending or contemplated by the Commission. Such counsel has participated in the preparation of the Registration Statement and Prospectus. From time to time such counsel has had discussions with officers, directors, and employees of the Company, accountants and auditors, the independent accountants who examined certain of the financial statements of the Company included in the Registration Statement and Prospectus, and your representatives concerning the information contained in the Registration Statement and Prospectus and the proposed responses to various Items in Form S-1. Based thereon, such counsel is of the opinion that the Registration 14 Statement and the Prospectus and any further amendments and supplements thereto made by the Company prior to the date hereof (except for the operating statistics, financial statements, financial schedules, and other financial data included therein, as to which such counsel expresses no opinion) comply as to form in all material respects with the requirements of the 1933 Act and the rules and regulations thereunder. (x) The descriptions in the Registration Statement and the Prospectus of the contracts, leases, and other legal documents therein described present fairly the information required to be shown and there are no contracts, leases, or other documents known to such counsel of a character required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement which are not described or filed as required. There are no statutes or regulations applicable to the Company or certificates, permits, or other authorizations from governmental regulatory officials or bodies required to be obtained or maintained by the Company of a character required to be disclosed in the Registration Statement or the Prospectus which have not been so disclosed and described therein. (xi) The Company and the Selling Shareholders have all requisite power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby, including the issuance, sale, and delivery by it of the Shares hereunder. The opinions called for by this clause (xi) may exclude from their scope any authorization, approval, order, license, certificate, or permit as may be required under the "blue sky" laws of any jurisdiction in connection with the distribution of the Shares contemplated by the Registration Statement. (xii) This Agreement has been duly authorized, executed, and delivered by the Company, and, assuming the due authorization, execution, and delivery by the Underwriters, will be valid and binding obligations of the Company and the Selling Shareholders enforceable in accordance with its terms, except to the extent enforceability may be limited by bankruptcy, insolvency, reorganization, or other laws of general applicability relating to or affecting creditor's rights, to general equity principles, and except to the extent that the indemnification provisions in Section 9 of the Agreement may be limited by federal or state securities laws or the public policy underlying such laws. (xiii) Neither the Company nor the Subsidiary is presently in breach of or default under its Articles of Incorporation or Bylaws, and to our actual knowledge no material default exists and no event has occurred which with notice or after the lapse of time to cure or both, would constitute a material default, in the due performance and observance of any term, covenant, or condition of any indenture, mortgage, deed of trust, loan agreement, note, lease, or other agreement or instrument actually known to such counsel to which the Company, the Subsidiary or the Selling Shareholders are a party or to which any of its or their properties is subject, in any such case where the default has not been waived and the consequences of such violation or default is likely to materially adversely affect the business, prospects, properties, assets, results of operation, or condition (financial or otherwise) of the Company or the Subsidiary. (xiv) Except as set forth in the Registration Statement and Prospectus, no holders of shares of Common Stock or other securities of the Company have registration rights with respect to securities of the Company and, except as set forth in the Registration Statement and Prospectus, all holders of securities of the Company having registration rights with respect to shares of Common Stock or other securities of the Company have, with respect to the offering contemplated hereby, waived such rights in writing or such rights have expired by reason of lapse of time following notification of the Company's intent to file the Registration Statement. 15 (xv) The Company is not an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations thereunder. (xvi) Such counsel has participated in the preparation of the Registration Statement and Prospectus and no facts have come to the attention of such counsel which leads them to believe that the Registration Statement (including the Rule 430A Information, if applicable) or the Prospectus, or any amendment thereto (except for the financial statements and schedules and other financial or operating data included therein and written information provided by the Underwriters for use in the section entitled "Underwriting," as to which such counsel need express no opinion), as of their respective effective, or filing dates, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading. In rendering the foregoing opinion, such counsel may rely on the following: (A) as to matters involving the application of laws other than the laws of the United States and jurisdictions in which they are admitted, to the extent such counsel deem proper and to the extent specified in such opinion, upon an opinion or opinions (in form and substance reasonably satisfactory to Underwriters' counsel) of other counsel familiar with applicable laws; and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and the Selling Shareholders and certificates or other written statements of officers or departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company and certificates of the Company's transfer agent, provided that copies of all such opinions, statements, or certificates shall be delivered to Underwriters' counsel, and, if written confirmation of the Commission is not available at the time such opinion is rendered, upon the current oral representations of members of the Commission's staff with respect to the Registration Statement or any amendment or supplement thereto having become effective and the lack of issuance of a stop order or institution of proceedings for that purpose. The opinion of counsel for the Company shall state that the opinion of any other counsel, or certificate or written statement, on which such counsel is relying is in form reasonably satisfactory to such counsel and that you and they are justified in relying thereon. (c) At the Closing Time, you shall have received a favorable opinion from Baker, Donelson, Bearman & Caldwell, counsel for the Underwriters, dated as of the Closing Time, with respect to the Registration Statement, the Prospectus, and other related matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (d) At the Closing Time, (i) the Registration Statement and the Prospectus, as they may then be amended or supplemented, shall contain all statements that are required to be stated therein under the 1933 Act and the 1933 Act Regulations and in all material respects shall conform to the requirements of the 1933 Act and the 1933 Act Regulations, the Company shall have complied in all material respects with Rule 430A (if it shall have elected to rely thereon) and neither the Registration Statement nor the Prospectus, as they may then be amended or supplemented, shall contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) there shall not have been, since the respective dates as of which information is given in the Registration Statement, any material adverse change in the business prospects, properties, assets, results of operation, or condition (financial or otherwise) of the Company, whether or not arising in the ordinary course of business; 16 (iii) no action, suit, or proceeding at law or in equity shall be pending or, to the best of the Company's knowledge, threatened against the Company that would be required to be set forth in the Prospectus other than as set forth therein and no proceedings shall be pending or, to the knowledge of the Company, threatened against the Company before or by any federal, state, or other commission, board or administrative agency wherein an unfavorable decision, ruling, or finding could materially adversely affect the business, prospects, properties, assets, results of operations, or condition (financial or otherwise) of the Company, other than as set forth in the Prospectus; (iv) the Company and the Selling Shareholders shall have complied with all agreements and satisfied all conditions on their respective parts to be performed or satisfied at or prior to the Closing Time; and (v) the representations and warranties of the Company set forth in Section 1 and the representations and warranties of the Selling Shareholders made in Section 2 shall be accurate as though expressly made at and as of the Closing Time. At the Closing Time, you shall have received certificates executed by the Selling Shareholders the President and the Chief Financial Officer of the Company, dated as of the Closing Time, to such effect and with respect to the following additional matters: (i) the Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus has been issued, and no proceedings for that purpose have been instituted or are pending or, to the best of their knowledge, threatened under the 1933 Act; (ii) they have carefully reviewed the Registration Statement and the Prospectus and when the Registration Statement became effective and at all times subsequent thereto up to the delivery of such certificate, the Registration Statement and the Prospectus and any amendments or supplements thereto contained all statements and information required to be included therein or necessary to make the statements therein not misleading and neither the Registration Statement nor Prospectus and any amendment or supplement thereto included any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amended or supplemented Prospectus that has not been so set forth; and (iii) all representations, warranties, covenants, and statements made herein by the Company and the Selling Shareholders, respectively, are true and correct at such Closing Time, with the same effect as if made on and as of such Closing Time, and all agreements herein to be performed by the Company and the Selling Shareholders, on or prior to such Closing Time have been duly performed. (e) On the business day immediately preceding the date of this Agreement and at the Closing Time you shall have received from Arthur Andersen LLP, a letter or letters, dated the date hereof and as of the Closing Time in form and substance satisfactory to you, together with signed or reproduced copies of such letter for each of the other Underwriters, confirming that they are independent public accountants with respect to the Company within the meaning of the 1933 Act and 1933 Act Regulations, stating in effect that: (i) in their opinion, the consolidated financial statements included in the Registration Statement and covered by their report therein comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1933 Act Regulations; (ii) on the basis of limited procedures (set forth in detail in such letter and made in accordance with such procedures as may be reasonably specified by you) not constituting an audit in accordance with generally accepted auditing standards, consisting of (but not limited to) a reading of the latest available internal unaudited consolidated financial statements of the Company, a reading of minute books of the Company, inquiries of officials of the Company responsible for financial and accounting matters, and such other inquiries and procedures, as may be specified in such letter, nothing has come to their attention which caused them to believe that: (A) the unaudited financial statements and other unaudited financial data of the Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the 1933 Act or the 1933 Regulations 17 or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement; (B) the amounts of revenue, income before income taxes, net income and net income per share for the five fiscal years ended September 30, 1996, included in the Prospectus under the caption "Prospectus Summary -- Summary Consolidated Financial and Operating Data" do not agree with the corresponding amounts in the audited statements of income; (C) at a specified date not more than five business days prior to the date of delivery of such letter, there was any change in the capital stock or long-term debt or obligations under capital leases of the Company other than scheduled repayments or any decreases in total assets, stockholders' equity, or other items specified by the Underwriters from that set forth in the consolidated balance sheet at September 30, 1996, included in the Prospectus, except as described in the Prospectus or such letter; (D) for the period from September 30, 1996, to a specified date not more than five days prior to the date of delivery of such letter, there were any decreases in revenue, gross profit, or the total or per share amounts of income before extraordinary items or net income, of the Company, in each case as compared with the corresponding period of the preceding year, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in such letter; and (iii) in addition to the procedures referred to in clause (ii) above and the audit referred to in their report included in the Registration Statement, they have carried out certain specific procedures, not constituting an audit in accordance with generally accepted auditing standards, with respect to certain amounts, percentages, and financial information specified by you which are derived from the general accounting records of the Company, which appear in the Registration Statement or the exhibits or schedules thereto and are specified by you, and have compared such amounts, percentages, and financial information with the accounting records of the Company and with material derived from such records and have found them to be in agreement. (f) At the Closing Time, you shall have received from Arthur Andersen LLP a letter, in form and substance satisfactory to you and dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) above, except that the specified date referred to shall be a date not more than five business days prior to the Closing Time. (g) In the event that either of the letters to be delivered pursuant to subsections (e) and (f) above sets forth any such changes, decreases, or increases, it shall be a further condition to your obligations that you shall have determined, after discussions with officers of the Company responsible for financial and accounting matters and with Arthur Andersen LLP, that such changes, decreases, or increases as are set forth in such letters do not reflect a material adverse change in the capital stock, long-term debt, obligations under capital leases, total assets, or stockholders' equity of the Company as compared with the amounts shown in the latest condensed consolidated balance sheet of the Company, or a material adverse change in revenues or the total or per share amounts of income before extraordinary items or net income, of the Company, in each case as compared with the corresponding period of the prior year. (h) At the Closing Time, counsel for the Underwriters shall have been furnished with all such documents, certificates, and opinions as they may request for the purpose of enabling them to pass upon the issuance and sale of the Shares as contemplated in this Agreement and the matters referred to in Section 7(d) and in order to evidence the accuracy and completeness of any of the representations and warranties or 18 statements of the Company, the performance of any of the covenants of the Company, or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Company at or prior to the Closing Time in connection with the authorization, issuance, and sale of the Shares as contemplated in this Agreement shall be satisfactory in form and substance to you and to counsel for the Underwriters. The Company will furnish you with such number of conformed copies of such opinion, certificates, letters, and documents as you shall request. (i) The NASD, upon review of the terms of the public offering of the Shares, shall not have objected to such offering, such terms or the Underwriters' participation in the same. (j) The Firm Shares and the Option Shares, if any, shall have been approved for listing on NSM upon official notice of the issuance, sale, and evidence of satisfactory distribution thereof pursuant to this underwritten public offering. (k) Each stockholder of the Company specified in Section 1(v) hereof shall have agreed in writing as to the matters set forth in such section. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement to be fulfilled, this Agreement may be terminated by you on notice to the Company and the Selling Shareholders at any time at or prior to the Closing Time, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Section 9 shall remain in effect. Section 8. Conditions to Purchase of Option Shares. In the event that the Underwriters exercise the option granted in Section 3 hereof to purchase all or any part of the Option Shares and the Date of Delivery determined by you pursuant to Section 3 hereof is later than the Closing Time, the obligations of the several Underwriters to purchase and pay for the Option Shares that they shall have severally agreed to purchase pursuant to this Agreement are subject to the accuracy of the representations and warranties of the Company and the Selling Shareholders herein contained, to the performance by the Company and the Selling Shareholders of their obligations hereunder and to the following further conditions: (a) The Registration Statement shall remain effective at the Date of Delivery, and, at the Date of Delivery, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act and no proceedings for that purpose shall have been instituted or shall be pending or, to your knowledge or the knowledge of the Company or the Selling Shareholders, shall be contemplated by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the satisfaction of counsel for the Underwriters. (b) At the Date of Delivery, the provisions of Sections 7(d)(i) through 7(d)(v) shall have been complied with at and as of the Date of Delivery and, at the Date of Delivery, you shall have received certificates executed by the Selling Shareholders, the President and the Chief Financial Officer of the Company, dated as of the Date of Delivery, to such effect and to the effect set forth in clauses (i), (ii) and (iii) of Section 7(d). (c) At the Date of Delivery, you shall have received a favorable opinion of Scudder Law Firm, P.C., counsel for the Company and the Selling Shareholders, together with signed or reproduced copies of such opinion for each of the other Underwriters, in form and substance satisfactory to counsel for the Underwriters, dated as of the Date of Delivery, relating to the Option Shares and otherwise to the same effect as the opinion required by Section 7(b). 19 (d) At the Date of Delivery, you shall have received a favorable opinion of Baker, Donelson, Bearman & Caldwell, counsel for the Underwriters, dated as of the Date of Delivery relating to the Option Shares and otherwise to the same effect as the opinion required by Section 7(c). (e) At the Date of Delivery, you shall have received a letter from Arthur Andersen LLP, in form and substance satisfactory to you and dated as of the Date of Delivery, to the effect that they reaffirm the statements made in the letter furnished pursuant to Section 7(e), except that the specified date referred to shall be a date nor more than five business days prior to the Date of Delivery. (f) At the Date of Delivery, counsel for the Underwriters shall have been furnished with all such documents, certificates, and opinions as they may request for the purpose of enabling them to pass upon the issuance and sale of the Option Shares as contemplated in this Agreement and the matters referred to in Section 8(a) and in order to evidence the accuracy and completeness of any of the representations, warranties, or statements of the Company and the Selling Shareholders, the performance of any of the covenants of the Company and the Selling Shareholders, or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Company and the Selling Shareholders, at or prior to the Date of Delivery in connection with the authorization, issuance, and sale of the Option Shares as contemplated in this Agreement shall be satisfactory in form and substance to you and to counsel for the Underwriters. Section 9. Indemnification and Contribution. (a) The Company and the Selling Shareholders jointly and severally will indemnify and hold harmless each Underwriter and the Selling Shareholders against any losses, claims, damages, or liabilities, joint or several, to which such Underwriter may become subject under the 1933 Act, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any breach of any warranty or covenant by the Company or the Selling Shareholders herein contained or any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto, or in any "blue sky" application or other document executed by the Company or based upon any information furnished in writing by the Company, filed in any jurisdiction in order to qualify any or all of the Shares under the securities laws thereof ("Blue Sky Application"), or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such loss, claim, damage, liability, or action; provided, however, that the Company and the Selling Shareholders shall not be liable in any such case to the extent that any such loss, claim, damage, or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, such Preliminary Prospectus or the Prospectus, or such amendment or supplement, or any Blue Sky Application in reliance upon and in conformity with written information furnished to the Company by you or by any Underwriter through you expressly for use therein; provided, further, that the Company and the Selling Shareholders will not be liable for any such losses, claims, damages, or liabilities arising from the sale of the Shares to any person if a copy of the Prospectus (as first filed pursuant to Rule 424(b)) or the Prospectus as amended or supplemented by all amendments or supplements thereto which has been furnished to the Underwriters shall not have been sent, mailed, or given to such person, at or prior to the written confirmation of the sale of such Shares to such person, but only if and to the extent that such Prospectus, if so sent or delivered, would have cured the defect giving rise to such losses, claims, damages, or liabilities. The indemnity contained in this Section 9(a) shall not be modified or diminished by any assertion or determination by a third party that any Underwriter has been negligent in its due diligence obligation related to this Registration Statement. In no event, however, shall the liability of any Selling Shareholder for indemnification under the Section 9(a) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total Shares sold hereunder which is being sold by such Selling Shareholder, or (ii) the 20 proceeds received by such Selling Shareholder from the Underwriters in the offering. In addition to their other obligations under this Section 9(a), the Company and the Selling Shareholders agree that, as an interim measure during the pendency of any such claim, action, investigation, inquiry, or other proceeding arising out of or based upon any statement or omission, or any alleged statement or omission, described in this Section 9(a), they will reimburse the Underwriters on a monthly basis for all reasonable legal and other expenses incurred in connection with investigating or defending any such claim, action, investigation, inquiry, or other proceeding, notwithstanding the absence of a judicial determination as to the propriety and enforceability of the Company's and the Selling Shareholders obligations to reimburse the Underwriters for such expense and the possibility that such payments might later be held to have been improper by a court of competent jurisdiction. This indemnity agreement shall be in addition to any liabilities that the Company may otherwise have. For purposes of this Section 9, the information set forth in the last paragraph on the front cover page (insofar as such information related to the Underwriters), under "Underwriting" and with respect to the size of various trucking segments in the first paragraph of the "Industry Overview" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus, or the Registration Statement. (b) Each Underwriter, severally but not jointly, will indemnify and hold harmless the Company and the Selling Shareholders against any losses, claims, damages, or liabilities to which the Company or the Selling Shareholders may become subject, under the 1933 Act, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, any Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto, or any Blue Sky Application or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, such Preliminary Prospectus, or the Prospectus, or such amendment or supplement, or any Blue Sky Application, in reliance upon and in conformity with information furnished to the Company or the Selling Shareholder by such Underwriter expressly for use therein; and will reimburse the Company and the Selling Shareholders for any legal or other expenses reasonably incurred by the Company or the Selling Shareholders or in connection with investigating or defending any such loss, claim, damage, liability, or action. In addition to their other obligations under this Section 9(b), the Underwriters agree that, as an interim measure during the pendency of any such claim, action, investigation, inquiry, or other proceeding arising out of or based upon any statement or omission, or any alleged statement or omission, described in this Section 9(b), they will reimburse the Company and the Selling Shareholders on a monthly basis for all reasonable legal and other expenses incurred in connection with investigating or defending any such claim, action, investigation, inquiry, or other proceeding, notwithstanding the absence of a judicial determination as to the propriety and enforceability of their obligation to reimburse the Company or the Selling Shareholders for such expense and the possibility that such payments might later be held to have been improper by a court of competent jurisdiction. This indemnity agreement shall be in addition to any liabilities which the Underwriters may otherwise have. The indemnity agreement in this Section 9(b) shall extend upon the same terms and conditions to, and shall inure to the benefit of, each officer and director of the Company and each person, if any, who controls the Company within the meaning of the 1933 Act to the same extent as such agreement applies to the Company. (c) This paragraph (c) is intentionally left blank. (d) Within ten days after receipt by an indemnified party under subsection (a) or (b) above of notice of commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the 21 commencement thereof; no indemnification provided in this Section 9(a) or 9(b) shall be available to any party who shall fail to give notice as provided in this Section 9(d) if the party to whom notice was not given was unaware of the proceeding to which such notice would have related and was prejudiced by the failure to give such notice, but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability that it may have to any indemnified party otherwise than under this Section 9. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein, and, to the extent that it shall wish, jointly with any other indemnifying party, similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof the indemnifying party shall not be liable to such indemnified party for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof. The indemnified party shall have the right to employ its own counsel in any such action, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the employment of counsel by such indemnified party has been authorized by the indemnifying party, (ii) the indemnified party shall have been advised by such counsel that there may be a conflict of interest between the indemnifying party and the indemnified party in the conduct of the defense of such action (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party), or (iii) the indemnifying party shall not in fact have employed counsel to assume the defense of such action, in any of which events such fees and expenses shall be borne by the indemnifying party. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. (e) It is agreed that any controversy arising out of the operation of the interim reimbursement arrangements set forth in Sections 9(a) and 9(b) hereof, including the amounts of any requested reimbursement payments, the method of determining such amounts and the basis on which such amounts shall be apportioned among the indemnifying parties, shall be settled by arbitration conducted pursuant to the Code of Arbitration Procedure of the NASD. Any such arbitration must be commenced by service of a written demand for arbitration or a written notice of intention to arbitrate, therein electing the arbitration tribunal. In the event the party demanding arbitration does not make such designation of an arbitration tribunal in such demand or notice, then the party responding to said demand or notice is authorized to do so. Any such arbitration will be limited to the operation of the interim reimbursement provisions contained in Sections 9(a) and 9(b) hereof and will not resolve the ultimate propriety or enforceability of the obligation to indemnify for expenses that is created by the provisions of Sections 9(a) and 9(b). (f) In order to provide for just and equitable contribution in circumstances under which the indemnity provided for in this Section 9 is for any reason judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) to be unenforceable by the indemnified parties although applicable in accordance with its terms, the Company, Selling Shareholders and the Underwriters shall contribute to the aggregate losses, liabilities, claims, damages, and expenses of the nature contemplated by such indemnity incurred by the Company and one or more of the Underwriters, as incurred, in such proportions that (i) the Underwriters are responsible pro rata for that portion represented by the underwriting discount appearing on the cover page of the Prospectus bears to the public offering price (before deducting expenses) appearing thereon, and (ii) the Company and the Selling Shareholders are responsible for the balance; provided, however, that no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation; provided, further, that if the allocation provided above is not permitted by applicable law, the Company, the Selling Shareholders and the Underwriters shall contribute to the aggregate losses in such proportion as is appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, the Selling Shareholders 22 and the Underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, or liabilities, as well as any other relevant equitable considerations. Relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, the Selling Shareholders or by the Underwriters and the parties' relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, or liabilities referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (f), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this subsection (f) no Selling Shareholder shall be required to contribute any amount in excess of the lessor of (A) that proportion of the total of such losses, claims, damages, or liabilities indemnified or contributed against equal to the proportion of the total shares sold hereunder which is being sold by such Selling Shareholder, or (B) the proceeds received by such Selling Shareholder from the Underwriters in the Offering. For purposes of this Section 9(f), each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act shall have the same rights to contribution as the Company. (g) The parties to this Agreement acknowledge that they are sophisticated business persons who were represented by counsel during the negotiations regarding the provisions of this Agreement, including without limitation, the provisions of this Section 9, and are fully informed regarding said provisions. They further acknowledge that the provisions of this Section 9 fairly allocate the risks in light of the ability of the parties to investigate the Company and its business in order to assure that adequate disclosure is made in the Registration Statement and Prospectus as required by the 1933 Act. The parties are advised that federal or state public policy, as interpreted by the courts in certain jurisdictions, may be contrary to certain of the provisions of this Section 9, and the parties hereto hereby expressly waive and relinquish any right or ability to assert such public policy as a defense to a claim under this Section 9 and further agree not to attempt to assert any such defense. Section 10. Representations and Agreements to Survive Delivery. The representations, warranties, indemnities, agreements, and other statements of the Selling Shareholders, the Company or its officers set forth in or made pursuant to this Agreement will remain operative and in full force and effect regardless of any investigation made by or on behalf of the Company, the Selling Shareholders or any Underwriter or controlling person, with respect to an Underwriter or the Company and will survive delivery of and payment for the Shares or termination of this Agreement. Section 11. Effective Date of Agreement and Termination. (a) This Agreement shall become effective (i) if at the time of execution of this Agreement the Registration Statement has not become effective, at 10:00 A.M. eastern time on the first full business day following the effectiveness of the Registration Statement, or (ii) if at the time of execution of this Agreement, the Registration Statement has been declared effective, at 10:00 A.M. eastern time on the first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective at such earlier time after the Registration Statement becomes effective as you may determine on and by notice to the Company or by release of any of the Shares for sale to the public. For the purposes of this Section 11, the Shares shall be deemed to have been so released upon the release for publication of any newspaper 23 advertisement relating to the Shares or upon the release by you of telegrams or facsimile messages (i) advising the Underwriters that the Shares are released for public offering, or (ii) offering the Shares for sale to securities dealers, whichever may occur first. By giving notice before the time this Agreement becomes effective, you, as the Representative of the several Underwriters, the Company or the Selling Shareholders, may prevent this Agreement from becoming effective, without liability of any party to any other party, except that the and the Selling Shareholders Company shall remain obligated to pay costs and expenses to the extent provided in Section 6 hereof. (b) You may terminate this Agreement by notice to the Company and the Selling Shareholders at any time at or prior to the Closing Time (i) in accordance with the last paragraph of Section 7 of this Agreement; (ii) if there has been, since the respective dates as of which information is given in the Registration Statement, any material adverse change, or any development which might reasonably be viewed as resulting in a material adverse change in or affecting the assets, properties, results of operation, financial condition, or business prospects of the Company, whether or not arising in the ordinary course of business; (iii) if there has occurred or accelerated any outbreak of hostilities or other national or international calamity or crisis or change in economic or political conditions the effect of which on the financial markets of the United States is such as to make it, in your judgment, impracticable to market the Shares or enforce contracts for the sale of the Shares; (iv) if trading in any securities of the Company has been suspended by the Commission or by the NASD or NSM, or if trading generally on the New York Stock Exchange or in the over-the-counter market has been suspended, or limitations on prices for trading (other than limitations on hours or numbers of days of trading) have been fixed, or maximum ranges for prices for securities have been required, by such exchange or the NASD or by order of the Commission or any other governmental authority; (v) if a banking moratorium has been declared by federal or New York authorities; (vi) any federal or state statute, regulation, rule, or order of any court or other governmental authority has been enacted, published, decreed, or otherwise promulgated which in your reasonable opinion materially adversely affects or will materially adversely affect the business or operations of the Company; or (vii) any action has been taken by any federal, state, or local government or agency in respect of its monetary or fiscal affairs which in your reasonable opinion has a material adverse effect on the securities markets in the United States. (c) If this Agreement is terminated pursuant to this Section 11, such termination shall be without liability of any party to any other party, except to the extent provided in Section 6. Notwithstanding any such termination, the provisions of Section 9 shall remain in effect. Section 12. Default by One or More of the Underwriters. (a) If any Underwriter shall default in its obligation to purchase the Firm Shares which it has agreed to purchase hereunder, you shall use your best efforts to arrange for you or another party or other parties to purchase such Firm Shares on the terms contained herein. If within 36 hours after such default by any Underwriter you do not arrange for the purchase of such Firm Shares, then the Company or the Selling Shareholders shall be entitled to a further period of 36 hours within which to procure another party or other parties satisfactory to you to purchase such Firm Shares on such terms. In the event that, within the respective prescribed periods, you notify the Company that you have so arranged for the purchase of such Firm Shares, or the Company notifies you that it has so arranged for the purchase of such Firm Shares, you, or the Company or the Selling Shareholders shall have the right to postpone the Closing Time for a period of not more than seven days in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any amendments to the Registration Statement or the Prospectus which in your opinion may thereby be made necessary. The term "Underwriter" as used in this Agreement shall include any persons substituted under this Section 12 with like effect as if such person had originally been a party to this Agreement with respect to such Firm Shares. 24 (b) If, after giving effect to any arrangements for the purchase of the Firm Shares of a defaulting Underwriter or Underwriters made by you, the Company or the Selling Shareholders as provided in subsection (a) above, the aggregate number of Firm Shares which remains unpurchased does not exceed 200,000, then the Company shall have the right to require each nondefaulting Underwriter to purchase the Firm Shares which such Underwriter agreed to purchase hereunder and, in addition, to require each nondefaulting Underwriter to purchase its pro rata share (based on the number of Firm Shares which such Underwriter agreed to purchase hereunder) of the Firm Shares of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. (c) If, after giving effect to any arrangements for the purchase of the Firm Shares of a defaulting Underwriter or Underwriters made by you or the Company as provided in subsection (a) above, the number of Firm Shares which remains unpurchased exceeds 200,000, or if the Company shall not exercise the right described in subsection (b) above to require nondefaulting Underwriters to purchase Firm Shares of a defaulting Underwriter or Underwriters, then the Company, the Selling Shareholders or you shall have the right, by written notice within the next twenty-four (24) hours, to terminate this Agreement, without liability on the part of any nondefaulting Underwriter, the Company or the Selling Shareholders except for the expenses to be borne by the Company, the Selling Shareholders and the Underwriters as provided in Section 6 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default. Section 13. Default by the Company or the Selling Shareholders. If the Company or the Selling Shareholders shall fail at the Closing Time to sell and deliver the respective aggregate number of Firm Shares that they are obligated to sell, then this Agreement shall terminate without any liability on the part of any nondefaulting party, except to the extent provided in Section 6 and except that the provisions of Section 9 shall remain in effect. No action taken pursuant to this Section shall relieve the Company or the Selling Shareholders from liability, if any, in respect of their default. Section 14. Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed to have been duly given if mailed, delivered, or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed c/o Morgan Keegan & Company, Inc., 50 Front Street, Memphis, Tennessee 38103, attention of Mr. John H. Grayson, Jr., Senior Vice President (with a copy sent in the same manner to Baker, Donelson, Bearman & Caldwell, 2000 First Tennessee Building, 165 Madison Avenue, Memphis, Tennessee 38103, attention of Robert Walker, Esq.); and notices to the Company and the Selling Shareholders shall be directed to Simon Transportation Services Inc., 4646 South 500 West, Salt Lake City, Utah 84123, Attention Richard D. Simon, President (with a copy sent in the same manner to Scudder Law Firm, P.C., 411 South 13th Street, Suite 200, Lincoln, Nebraska 68508, Attention of Mark A. Scudder, Esq.). Each notice hereunder shall be effective upon receipt by the party to which it is addressed. Section 15. Parties. This Agreement is made solely for the benefit of the Underwriters, the Selling Shareholders and the Company and, to the extent so provided, any person controlling the Company or any of the Underwriters, and the directors of the Company, its officers who have signed the Registration Statement, and their respective executors, administrators, successors, and assigns and, subject to the provisions of Section 12, no other person shall acquire or have any right under or by virtue of this Agreement. The term "successors and assigns" shall not include any purchaser, as such purchaser, from any of the several Underwriters of the Shares. Section 16. Governing Law and Time. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Tennessee. Unless otherwise specified, the time of the day refers to United States Central Time. 25 Section 17. Counterparts. This Agreement may be executed in one or more counterparts and when a counterpart has been executed by each party, all such counterparts taken together shall constitute one and the same agreement. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us a counterpart hereof, whereupon this instrument will become a binding agreement among the Company and the several Underwriters in accordance with its terms. Very truly yours, SIMON TRANSPORTATION SERVICES INC. By:______________________________________ Richard D. Simon, President DICK SIMON TRUCKING, INC. By:______________________________________ Richard D. Simon, President 26 SELLING SHAREHOLDERS ______________________________________ Richard D. Simon, Trustee of the Richard D. Simon Revocable trust UTAD 2/12/93 ______________________________________ Kelle A. Simon ______________________________________ Lyn Simon ______________________________________ Richard D. Simon, Jr. ______________________________________ Sherry L. Simon Bokovoy ______________________________________ Alban B. Lang Confirmed and accepted in Memphis, Tennessee, as of the date first above written, as Representative of the Underwriters named in Schedule 1 hereto. MORGAN KEEGAN & COMPANY, INC. By:______________________________________________ John H. Grayson, Jr., Senior Vice President 27 SCHEDULE I ----------
NAME NUMBER OF FIRM SHARES ---- --------------------- Morgan Keegan & Company, Inc. ......................... A.G. Edwards & Sons, Inc. ............................. George K. Baum & Company .............................. Total Firm Shares ..................................... 2,000,000
28 EX-5 3 OPINION & CONSENT OF SCUDDER LAW FIRM, P.C. EXHIBIT 5 January 16, 1997 Simon Transportation Services Inc. 4646 South 500 West Salt Lake City, UT 84123 RE: Registration Statement on Form S-1 - 2,000,000 Shares of Class A Common Stock ---------------------------------------- Ladies and Gentlemen: Scudder Law Firm, P.C. has served as legal counsel to Simon Transportation Services Inc., a Nevada corporation (the "Company"), in the preparation and filing with the Securities and Exchange Commission of the Company's Registration Statement on Form S-1 dated January 17, 1997, as amended. Such Registration Statement was filed pursuant to the requirements of the Securities Act of 1933, as amended, and the General Rules and Regulations thereunder for the registration of 2,000,000 shares of Class A Common Stock of the Company (2,300,000 shares if the underwriters' over-allotment option is exercised in full), 1,425,000 and 575,000 of which shares will be sold by the Company and certain stockholders of the Company, respectively. The Company and Richard D. Simon, the Company's principal stockholder, will sell an additional 100,000 and 200,000 shares of Class A Common Stock, respectively, if the underwriters' over- allotment option is exercised in full. In connection with the following opinion, we have examined and have relied upon such documents, records, certificates, statements, and instruments as we have deemed necessary and appropriate. Based upon the foregoing, it is our opinion that the Company's shares of Class A Common Stock, when and if issued and sold in the manner set forth in the Registration Statement, will be legally and validly issued, fully paid, and nonassessable. The undersigned hereby consents to the filing of this opinion as Exhibit 5 to the Registration Statement and the use of its name in the Registration Statement under the caption of the prospectus entitled "Legal Matters" and elsewhere it may appear. Very truly yours, Scudder Law Firm, P.C. By: /s/ Mark A. Scudder ------------------------------ Mark A. Scudder, Principal MAS:ljc EX-23.2 4 CONSENT OF ARTHUR ANDERSEN LLP EXHIBIT 23.2 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the use of our report dated October 11, 1996, relating to the consolidated financial statements of Simon Transportation Services Inc. and subsidiary as of September 30, 1995 and 1996 and for each of the three years in the period ended September 30, 1996 (and to all references to our Firm) included in or made a part of this registration statement. /s/ Arthur Andersen LLP - ----------------------- Arthur Andersen LLP Salt Lake City, Utah January 16, 1997 -----END PRIVACY-ENHANCED MESSAGE-----