-----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, WYMM/qJaerx3ZND2qMIIa5zNruV9NAGCoR5FOl/NbAoxVLuyFbxThXRugNC6QPJY BjrIYiLSl9ikMeep8M64Qw== 0001008886-01-500037.txt : 20010822 0001008886-01-500037.hdr.sgml : 20010822 ACCESSION NUMBER: 0001008886-01-500037 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010821 SUBJECT COMPANY: 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: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-50145 FILM NUMBER: 1720631 BUSINESS ADDRESS: STREET 1: 5175 W 2100 SOUTH STREET 2: P O BOX 26297 CITY: WEST VALLEY CITY STATE: UT ZIP: 84123 BUSINESS PHONE: 8007779100 MAIL ADDRESS: STREET 1: P O BOX 26297 CITY: SALT LAKE CITY STATE: UT ZIP: 84126-0297 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MOYES JERRY CENTRAL INDEX KEY: 0000901736 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: C/O SWIFT TRANSPORTATION CO INC STREET 2: P.O. BOX 29243 CITY: PHOENIX STATE: AZ ZIP: 85043 BUSINESS PHONE: 6022699700 MAIL ADDRESS: STREET 1: C/O SWIFT TRANSPORTATION CO INC STREET 2: P.O. BOX 29243 CITY: PHOENIX STATE: AZ ZIP: 85038 SC 13D/A 1 schedule13d.txt SCHEDULE 13D/A SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D/A Under the Securities Act of 1934 (Amendment No. 12)* SIMON TRANSPORTATION SERVICES INC. (Name of Issuer) CLASS A COMMON STOCK, $0.01 Par Value (Title of Class of Securities) 828813105 (CUSIP Number) Jerry Moyes 2200 South 75th Avenue Phoenix, AZ 85043 (623) 269-9700 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) August 1, 2001 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. [ ] NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). Page 1 of 13 SCHEDULE 13D CUSIP NO. 828813105 - -------------------------------------------------------------------------------- (1) Names of Reporting Persons Jerry Moyes I.R.S. Identification Nos. of Above Persons (entities only) - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (See Instructions) (a)[ ] (b)[ ] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Sources of Funds (See Instructions) PF and BK - -------------------------------------------------------------------------------- (5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization United States of America - -------------------------------------------------------------------------------- NUMBER OF (7) Sole Voting Power 2,203,898* SHARES _________________________________________________ BENEFICIALLY (8) Shared Voting Power OWNED BY _________________________________________________ EACH (9) Sole Dispositive Power 2,203,898* REPORTING _________________________________________________ PERSON WITH (10) Shared Dispositive Power - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 2,203,898 - -------------------------------------------------------------------------------- (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ] (See Instructions) - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 34.4% of Class A Common Shares - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) IN - -------------------------------------------------------------------------------- - ---------------------- * As to 1,213,298 Shares, together with wife, Vickie Moyes, as trustees. As to 342,600 Shares, through ownership of approximately 75% of the outstanding voting stock of SME Industries, Inc. Page 2 of 13 SCHEDULE 13D CUSIP NO. 828813105 - -------------------------------------------------------------------------------- (1) Names of Reporting Persons SME Steel Contractors, Inc. I.R.S. Identification Nos. of Above Persons (entities only) 87-0495960 - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (See Instructions) (a)[ ] (b)[ ] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Sources of Funds (See Instructions) WC - -------------------------------------------------------------------------------- (5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization Utah - -------------------------------------------------------------------------------- NUMBER OF (7) Sole Voting Power 456,800 SHARES _________________________________________________ BENEFICIALLY (8) Shared Voting Power OWNED BY _________________________________________________ EACH (9) Sole Dispositive Power 456,800 REPORTING _________________________________________________ PERSON WITH (10) Shared Dispositive Power - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 456,800 - -------------------------------------------------------------------------------- (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 7.5% of Class A Common Shares - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) CO - -------------------------------------------------------------------------------- Page 3 of 13 SCHEDULE 13D CUSIP NO. 828813105 - -------------------------------------------------------------------------------- (1) Names of Reporting Persons The Jerry & Vickie Moyes Family Trust Dated 12/11/87 I.R.S. Identification Nos. of Above Persons (entities only) - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (See Instructions) (a)[ ] (b)[ ] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Sources of Funds (See Instructions) PF - -------------------------------------------------------------------------------- (5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization United States of America - -------------------------------------------------------------------------------- NUMBER OF (7) Sole Voting Power 1,213,298 SHARES _________________________________________________ BENEFICIALLY (8) Shared Voting Power OWNED BY _________________________________________________ EACH (9) Sole Dispositive Power 1,213,298 REPORTING _________________________________________________ PERSON WITH (10) Shared Dispositive Power - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 1,213,298 - -------------------------------------------------------------------------------- (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 19.8% of Class A Common Shares - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) OO - -------------------------------------------------------------------------------- Page 4 of 13 SCHEDULE 13D CUSIP NO. 828813105 - -------------------------------------------------------------------------------- (1) Names of Reporting Persons Vickie Moyes I.R.S. Identification Nos. of Above Persons (entities only) - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (See Instructions) (a)[ ] (b)[ ] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Sources of Funds (See Instructions) PF - -------------------------------------------------------------------------------- (5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization United States of America - -------------------------------------------------------------------------------- NUMBER OF (7) Sole Voting Power 1,213,298** SHARES _________________________________________________ BENEFICIALLY (8) Shared Voting Power OWNED BY _________________________________________________ EACH (9) Sole Dispositive Power 1,213,298** REPORTING _________________________________________________ PERSON WITH (10) Shared Dispositive Power - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 1,213,298 - -------------------------------------------------------------------------------- (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 19.8% of Class A Common Shares - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) IN - -------------------------------------------------------------------------------- - ---------------------- ** Together with husband, Jerry Moyes, as trustees. Page 5 of 13 SCHEDULE 13D CUSIP NO. 828813105 - -------------------------------------------------------------------------------- (1) Names of Reporting Persons Ronald Moyes I.R.S. Identification Nos. of Above Persons (entities only) - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (See Instructions) (a)[ ] (b)[ ] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Sources of Funds (See Instructions) PF and BK - -------------------------------------------------------------------------------- (5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization United States of America - -------------------------------------------------------------------------------- NUMBER OF (7) Sole Voting Power 4,747,851*** SHARES _________________________________________________ BENEFICIALLY (8) Shared Voting Power OWNED BY _________________________________________________ EACH (9) Sole Dispositive Power 4,747,851*** REPORTING _________________________________________________ PERSON WITH (10) Shared Dispositive Power - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 4,747,851 - -------------------------------------------------------------------------------- (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 47.8% of Class A Common Shares - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) IN - -------------------------------------------------------------------------------- *** As sole general partner of the Moyes Children's Limited Partnership Page 6 of 13 SCHEDULE 13D CUSIP NO. 828813105 - -------------------------------------------------------------------------------- (1) Names of Reporting Persons Moyes Children's Limited Partnership I.R.S. Identification Nos. of Above Persons (entities only) 86-1003342 - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (See Instructions) (a)[ ] (b)[ ] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Sources of Funds (See Instructions) PF and BK - -------------------------------------------------------------------------------- (5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization Arizona - -------------------------------------------------------------------------------- NUMBER OF (7) Sole Voting Power 4,747,851 SHARES _________________________________________________ BENEFICIALLY (8) Shared Voting Power OWNED BY _________________________________________________ EACH (9) Sole Dispositive Power 4,747,851 REPORTING _________________________________________________ PERSON WITH (10) Shared Dispositive Power - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 4,747,851 - -------------------------------------------------------------------------------- (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 47.8% of Class A Common Shares - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) PN - -------------------------------------------------------------------------------- Page 7 of 13 SCHEDULE 13D This Amendment No. 12 to Schedule 13D hereby amends the Schedule 13D dated August 26, 1999, filed by Jerry Moyes and SME Steel Contractors, Inc. (the "Original Filers"), as previously amended by Amendment No. 1 dated August 31, 1999, Amendment No. 2 dated November 19, 1999, Amendment No. 3 dated May 23, 2000, Amendment No. 4 dated June 30, 2000, Amendment No. 5 dated July 10, 2000, Amendment No. 6 dated July 13, 2000, Amendment No. 7 dated July 21, 2000, Amendment No. 8 dated August 3, 2000, Amendment No. 9 dated August 10, 2000, Amendment No. 10 dated September 6, 2000, and Amendment No. 11 dated September 27, 2000 (the "Schedule 13D"). Amendment No. 2 added two new filers, The Jerry & Vickie Moyes Family Trust Dated 12/11/87 and Vickie Moyes (the "Amendment No. 2 Filers"). Amendment No. 11 also added two more filers, the Moyes Children's Limited Partnership and Ronald Moyes (the "Amendment No. 11 Filers"; the Original Filers, the Amendment No. 2 Filers, and the Amendment No. 11 Filers, together, the "Filing Persons"). This Amendment No. 12 further amends the Schedule 13D as described below. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION Item 3 is hereby supplemented as follows: The Partnership used cash assets and investment income to purchase 20,000 Shares in the open market on June 22, 2001, at a price of $4.32 per Share. As of June 30, 2001, the Partnership had used cash assets and investment income to make advances to the Issuer of $6,674,682.25 (the "Outstanding Amount"). Effective June 30, 2001, the Outstanding Amount was converted into 190,705 Series I Preferred Shares of the Issuer ("Preferred Shares"). Preferred Shares are convertible into Shares at the ratio of ten Shares for each Preferred Share; provided, however, Preferred Shares will not be convertible until the earliest to occur of (i) September 30, 2001, (ii) a change-in-control of the Issuer, or (iii) a sale of all or substantially all of the assets of the Issuer and its subsidiaries. Each Preferred Share carries the right to cast 10 votes on all stockholder proposals, representing equivalent voting rights to the Shares upon conversion. Dividends on each Preferred Share accrue at 10% per annum, based upon a $35.00 per share value. Preferred Shares have a liquidation preference over the Shares or any other class or series of capital stock of the Issuer, based upon the $35.00 per share value, plus accrued dividends. In connection with the issuance of Preferred Shares to the Partnership, the Partnership was issued a warrant to purchase up to 190,705 Preferred Shares for $35.00 per share or any lower price at which the Issuer issues its Preferred Shares or Shares or any options, rights, warrants, or other securities convertible into Preferred Shares or Shares during the term of the warrant. Ronald Moyes, as the sole general partner of the Partnership, has both voting and dispositive power over the Shares and Preferred Shares owned by the Partnership, but disclaims beneficial ownership of Shares and Preferred Shares owned by the Partnership to the extent he has no pecuniary interest in such Shares and Preferred Shares. Page 8 of 13 ITEM 4. PURPOSE OF TRANSACTION Item 4 is hereby supplemented as follows: The Outstanding Amount was converted to Preferred Shares and warrant granted to (i) assure compliance with the tangible net worth covenant and advance rate on the line of credit for the Issuer's operating subsidiary and (ii) maintain the financial position and viability of the Issuer and its subsidiary. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) Except as otherwise stated below, the approximate aggregate percentage of Shares beneficially owned by each of the Filing Persons is based on 6,115,109 Shares outstanding, which is the total number of Shares outstanding as of June 30, 2001, as reflected in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission for the fiscal quarter ended June 30, 2001. As of the close of business on June 30, 2001: (i) The Trust is the direct and beneficial owner of 1,213,298 Shares, constituting approximately 19.8% of the Shares outstanding. As grantors, trustees, and beneficiaries of the Trust, Jerry Moyes and his wife, Vickie Moyes, may be deemed to beneficially own (as defined in Rule 13d-3 promulgated under the Act) the Shares owned by the Trust. (ii) SME-Utah is the direct and beneficial owner of 456,800 Shares, constituting approximately 7.5% of the Shares outstanding. Because Jerry Moyes owns approximately 75% of the outstanding voting stock of SME-Nevada, which in-turn owns 100% of the outstanding voting stock of SME-Utah, Jerry Moyes may be deemed to beneficially own (as defined in Rule 13d-3 promulgated under the Act) 342,600 of the Shares owned by SME-Utah. Jerry Moyes disclaims beneficial ownership of any Shares attributable to the percentage of SME-Nevada he does not own. (iii) The Partnership is the direct and beneficial owner of 933,751 Shares and (pursuant to Rule 13d-3(d)(1)(i) promulgated under the Act) may be deemed to beneficially own (a) 1,907,050 Shares that would be issued to the Partnership if the Partnership converts its Preferred Shares to Shares and (b) 1,907,050 Shares that would be issued to the Partnership if it (i) exercised its warrant to purchase 190,705 Preferred Shares and (ii) converted those Preferred Shares to Shares. Altogether, the Partnership has direct and beneficial ownership of or may be deemed to beneficially own 4,747,851 Shares, constituting approximately 47.8% of the 9,929,209 Shares that would be outstanding assuming exercise of the warrant to purchase Preferred Shares and the conversion of all Preferred Shares then outstanding. Ronald Moyes, as the sole general partner of the Partnership, may be deemed to beneficially own (as defined in Rule 13d-3 promulgated under the Act) a portion of the 4,747,851 Shares directly and beneficially owned by the Partnership. Ronald Moyes disclaims beneficial ownership of any Shares or Preferred Shares owned by the Partnership to the extent he has no pecuniary interest in such Shares or Preferred Shares. Page 9 of 13 (iv) In addition to the Shares that Jerry Moyes may be deemed to beneficially own, as described in Item 5(a)(i) and (ii), Jerry Moyes is the direct and beneficial owner of 348,000 Shares, and (pursuant to Rule 13d-3(d)(1)(i) promulgated under the Act) he may be deemed to beneficially own an additional 300,000 Shares for which he has been granted a warrant. Altogether, Jerry Moyes either has direct and beneficial ownership of or may be deemed to beneficially own 2,203,898 Shares, constituting approximately 34.4% of 6,415,109 Shares that would be outstanding if the 300,000 warrant Shares were outstanding. (b) Items 1 and 7 through 10 of the Cover Page of each of the Filing Persons is incorporated herein by this reference. (c) Schedule A to Amendment No. 11 of this Schedule 13D describes transactions in the Shares effected during the 60 days preceding and including September 27, 2000. Since September 27, 2000, to the date of filing this Amendment No. 12, the only transactions that were effected in the Shares were (i) the purchase by the Partnership on June 22, 2001, of 20,000 Shares in the open market at a price of $4.32 per Share and (ii) the conversion of the Outstanding Amount to Preferred Shares and grant of accompanying warrant as described in Item 3 above. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER Item 6 is hereby supplemented as follows: The following is a summary of certain provisions of (a) the Warrant to Purchase Series I Preferred Shares dated June 30, 2001, by and between the Issuer and the Partnership (the "Warrant Agreement"), (b) the Subscription Agreement dated June 30, 2001, by and between the Issuer and the Partnership (the "Subscription Agreement"), and (c) the Issuer's Certificate of Designation, Preferences, Rights and Limitations of 600,000 Series I Preferred Shares dated August 16, 2001 (the "Certificate of Designation"). This summary is qualified in its entirety by the actual provisions of the foregoing documents, each of which is filed as an Exhibit to this Schedule 13D and is incorporated herein by this reference. (a) Warrant Agreement. Pursuant to the terms of the Warrant Agreement, the Issuer granted to the Partnership a warrant to purchase 190,705 Preferred Shares at $35.00 per share or a lower price at which the Issuer issues its Preferred Shares or Shares or any options, rights, warrants, or other securities convertible into Preferred Shares or Shares during the ten year term of the Warrant Agreement. The warrant is immediately exercisable. (b) Subscription Agreement. Pursuant to the terms of the Subscription Agreement, the Partnership subscribed for the purchase of 190,705 Preferred Shares. The purchase price for the Preferred Shares was tendered through conversion of prior advances in the amount of $6,674,682.25 made to the Issuer. (c) Certificate of Designation. The Certificate of Designation sets forth the preferences, rights, and limitations of the Issuer's Series I Preferred Shares. Page 10 of 13 Other than the foregoing, there are no contracts, arrangements, understandings or relationships (legal or otherwise) between the Filing Persons or between the Filing Persons and any other person with respect to any securities of the Issuer, including but not limited to transfer or voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS Item 7 is hereby supplemented as follows: The following documents are filed as exhibits: ------------------- ------------------------------------------------------- Exhibit Description ------------------- ------------------------------------------------------- 99.3 Warrant ------------------- ------------------------------------------------------- 99.4 Subscription Agreement ------------------- ------------------------------------------------------- 99.5 Certificate of Designation ------------------- ------------------------------------------------------- Page 11 of 13 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. August 20, 2001 (Date) By: /s/ Earl H. Scudder Earl H. Scudder on behalf of Jerry Moyes, individually (Signature) Earl H. Scudder, under power of attorney (Name/Title) By: /s/ Earl H. Scudder Earl H. Scudder on behalf of Vickie Moyes, individually (Signature) Earl H. Scudder, under power of attorney (Name/Title) The Jerry & Vickie Moyes Family Trust Dated 12/11/87 By: /s/ Earl H. Scudder Earl H. Scudder on behalf of Jerry Moyes, Trustee of the Jerry & Vickie Moyes Family Trust Dated 12/11/87 (Signature) Earl H. Scudder, under power of attorney (Name/Title) By: /s/ Earl H. Scudder Earl H. Scudder on behalf of Vickie Moyes, Trustee of the Jerry & Vickie Moyes Family Trust Dated 12/11/87 (Signature) Earl H. Scudder, under power of attorney (Name/Title) SME Steel Contractors, Inc. By: /s/ Earl H. Scudder Earl H. Scudder on behalf of Gordon Holladay, Secretary and Treasurer of SME Steel Contractors, Inc. (Signature) Earl H. Scudder, under power of attorney (Name/Title) Page 12 of 13 By: /s/ Earl H. Scudder Earl H. Scudder on behalf of Ronald Moyes, individually (Signature) Earl H. Scudder, under power of attorney (Name/Title) Moyes Children's Limited Partnership By: /s/ Earl H. Scudder Earl H. Scudder on behalf of Ronald Moyes, General Partner of the Moyes Children's Limited Partnership (Signature) Earl H. Scudder, under power of attorney (Name/Title) Page 13 of 13 EX-99 3 warrant.txt WARRANT TO PURCHASE SERIES I PREFERRED SHARES NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO SALE, TRANSFER OR OTHER DISPOSITION OF THIS WARRANT, SAID SHARES OR ANY INTEREST THEREIN MAY BE EFFECTED WITHOUT, AMONG SATISFYING OTHER CONDITIONS, (I) AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO, (II) AN OPINION OF COUNSEL FOR THE HOLDER THAT SUCH REGISTRATION IS NOT REQUIRED OR (III) RECEIPT OF A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION TO THE EFFECT THAT REGISTRATION UNDER THE ACT IS NOT REQUIRED. Void after 5:00 p.m., Utah Time on June 29, 2011 SIMON TRANSPORATION SERVICES INC. WARRANT TO PURCHASE SERIES I PREFERRED SHARES -------------------------- This certifies that as of June 30, 2001 (the "Grant Date"), for value received, the Moyes Children's Limited Partnership (the "Purchaser") or registered assigns (the Purchaser or such assignee, as applicable, being referred to herein as the "Holder"), is entitled to ONE HUNDRED NINETY THOUSAND SEVEN HUNDRED FIVE (190,705) warrants, each such warrant entitling the Holder to purchase one (1) share of Series I Preferred Shares, par value $0.01 per share (the "Series I Preferred Shares"), of Simon Transportation Services Inc., a Nevada corporation (the "Company"), at a price of Thirty-five and no/100 Dollars ($35.00) per share (the "Exercise Price") (such warrants and this certificate evidencing such warrants being referred to herein, collectively, as this "Warrant"). The number of shares of Series I Preferred Shares to be received upon the exercise of this Warrant (the "Warrant Shares") and the Exercise Price may be adjusted from time to time as hereinafter set forth. 1. Exercise of Warrant. Subject to the provisions of Section 2 below, this Warrant may be exercised, in whole or in part, at any time or from time to time on or after the Grant Date, but in any event no later than 5:00 p.m., Utah time, on June 29, 2011, or if such date is a day on which federal or state-chartered banking institutions in Utah are authorized by law to close, then on the next succeeding day which shall not be such a day; provided, however, no portion of this Warrant may be exercised with respect to fewer than fifty thousand (50,000) Warrant Shares at any one time, as such number is adjusted from time to time in accordance with Section 7 below. Such exercise shall be effective upon presentation and surrender to the Company at its principal office or at the office of its stock transfer agent, if any, of a copy of this Warrant with the duly executed Notice of Exercise form set forth on Exhibit A (attached hereto and made a part hereof by this reference) (the "Notice of Exercise"). The Notice of Exercise must be accompanied by payment, in cash or by certified or official bank check, payable to the order of the Company, in the amount of the Exercise Price for the number of the Warrant Shares, together with all transfer and similar taxes applicable upon such exercise for which the Company must withhold. The Company may require the Holder to execute such further documents and make certain representations and warranties as the Company deems necessary to ensure compliance with exemptions from applicable federal and state securities laws as required by Section 2 below. 2. Compliance with Securities Laws. This Warrant may not be exercised by the Holder unless at the time of exercise (i) a registration statement registering the Warrant Shares upon such exercise is effective under the Securities Act of 1933, as amended (and together with the rules and regulations promulgated thereunder, collectively, the "Securities Act"), or the transaction in which such Warrant Shares are to be issued is exempted from the application of the registration requirements of the Securities Act, and (ii) the Warrant Shares have been registered or qualified under any applicable state securities laws or an exemption from registration or qualification is available under such laws. This Warrant may not be exercised so long as the Holder is in default under the representations, warranties or covenants of this Warrant. 3. Stock Fully Paid; Reservation of Shares. All Warrant Shares that may be issued upon the exercise of this Warrant shall, upon issuance, be duly authorized, validly issued, fully paid and nonassessable, and free from all taxes, liens and charges with respect to the issue thereof. The Company hereby covenants and agrees that at all times during the period this Warrant is exercisable it shall reserve from its authorized and unissued Series I Preferred Shares for issuance and delivery upon exercise of this Warrant such number of shares of its Series I Preferred Shares as shall be required for issuance and delivery upon exercise of this Warrant. The Company agrees that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of executing stock certificates to execute and issue the necessary certificates for shares of Series I Preferred Shares upon the exercise of this Warrant. 4. Fractional Shares. No fractional shares or stock representing fractional shares shall be issued upon the exercise of this Warrant. In lieu of any fractional shares which would otherwise be issuable, the Company shall, in its sole discretion, either (i) pay cash equal to the product of such fraction multiplied by the fair market value of one share of Series I Preferred Shares on the date of exercise, as determined in good faith by the Company's Board of Directors or (ii) issue the next largest whole number of Warrant Shares. 5. Transfer, Exchange, Assignment or Loss of Warrant or Certificates. (a) This Warrant may not be assigned or transferred except as provided herein and in accordance with and subject to the provisions of the Securities Act and any other applicable federal and state securities laws. Any purported transfer or assignment made other than in accordance with this Section 5 and Section 8 hereof shall be null and void and of no force and effect. (b) This Warrant shall be transferable only upon the receipt by the Company of an opinion of counsel satisfactory to the Company to the effect that (i) the transferee is a person to whom the Warrant may be legally transferred without registration under the Securities Act or any state securities laws; and (ii) such transfer will not violate any applicable law or governmental rule or regulation including, without limitation, any applicable federal or state securities law. 2 (c) Any assignment permitted hereunder shall be made by surrender of this Warrant to the Company at its principal office with the duly executed Assignment Form set forth on Exhibit B attached hereto and made a part hereof by this reference and funds sufficient to pay any transfer tax. In such event, the Company shall execute and deliver a new Warrant in the name of the assignee named in such Assignment Form, and this Warrant shall promptly be cancelled. This Warrant may be divided or combined with other Warrants which carry the same rights upon presentation thereof at the principal office of the Company together with a written notice signed by the Holder thereof, specifying the names and denominations in which new Warrants are to be issued. The terms "Warrant" and "Warrants" as used herein include any Warrants in substitution for or replacement of this Warrant, or into which this Warrant may be divided or exchanged. (d) Upon receipt by the Company of evidence satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate representing Warrant Shares issued upon the exercise hereof and, in the case of any such loss, theft or destruction, upon receipt of an indemnity reasonably satisfactory to the Company, and, in the case of any such mutilation, upon surrender and cancellation of this Warrant or such stock certificate, the Company will execute and deliver a new Warrant or stock certificate of like tenor and date, and any such lost, stolen, destroyed or mutilated Warrant or stock certificate shall thereupon become void. (e) Each of the Holders of this Warrant, the Warrant Shares or any other security issued or issuable upon exercise of this Warrant shall indemnify and hold harmless the Company, its directors and officers, and each person, if any, who controls the Company, against any losses, claims, damages or liabilities, joint or several, to which the Company or any such director, officer or any such person may become subject under the Securities Act or any statute or common law, insofar as such losses, claims, damages or liabilities, or actions in respect thereof, arise out of or are based upon the disposition by such Holder of the Warrant, the Warrant Shares or other such securities in violation of the terms of this Warrant. 6. Rights of the Holder. The Holder shall not, by virtue hereof, be entitled to any rights of a stockholder in the Company, either at law or equity, and the rights of the Holder by virtue hereof are limited to those expressed in this Warrant. 7. Adjustment of Exercise Price and Number of Shares. The number and kind of securities purchasable upon the exercise of this Warrant and the Exercise Price shall be subject to adjustment from time to time upon the occurrence of certain events, as follows: (a) Subdivision or Combination of Series I Preferred Shares. If the Company at any time subdivides (by any stock split, stock dividend or otherwise) its outstanding shares of Series I Preferred Shares into a greater number of shares, or combines (by reverse stock split or otherwise) its outstanding shares of Series I Preferred Shares into a smaller number of shares, the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior thereto shall be adjusted so that the Holder of this Warrant shall be entitled to receive the kind and number of Warrant Shares or other securities of the Company which it would have owned or have been entitled to receive after the happening of any of the events described above had this Warrant been exercised immediately prior to the happening of such event or any record date with respect thereto. If the Holder is entitled to receive shares of two or more classes of capital stock of the Company pursuant to the foregoing upon exercise of the Warrant, the Company shall determine the allocation of the adjusted Exercise Price between the classes of capital stock. After such allocation, the exercise privilege and the Exercise Price of each class of capital stock shall thereafter be subject to adjustment on terms comparable to those applicable to Series I Preferred Shares in this Section 7. An 3 adjustment made pursuant to this subsection 7(a) shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event. Such adjustment shall be made successively whenever such a payment, subdivision or combination is made. (b) Adjustment in Exercise Price. When the number of Warrant Shares purchasable upon the exercise of each Warrant is adjusted as provided in subsection 7(a), the Exercise Price payable upon exercise of each Warrant shall be adjusted by multiplying such Exercise Price immediately prior to such adjustment by a fraction, of which the numerator shall be the number of Warrant Shares purchasable upon the exercise of each Warrant immediately prior to such adjustment, and of which the denominator shall be the number of Warrant Shares purchasable immediately thereafter. (c) Merger, Sale of Assets, etc. If at any time while this Warrant, or any portion hereof, is outstanding and unexpired there shall be (i) a reorganization (other than a combination, reclassification, exchange or subdivision of shares otherwise provided for herein), (ii) a merger or consolidation of the Company with or into another corporation in which the Company is not the surviving entity, or a reverse triangular merger in which the Company is the surviving entity but the shares of the Company's capital stock outstanding immediately prior to the merger are converted by virtue of the merger into other property, whether in the form of securities, cash, or otherwise, or (iii) a sale or transfer of the Company's properties and assets as, or substantially as, an entirety to any other person, then, as a part of such reorganization, merger, consolidation, sale or transfer, lawful provision shall be made so that the holder of this Warrant shall thereafter be entitled to receive upon exercise of this Warrant, during the period specified herein and upon payment of the Exercise Price then in effect, the number of shares of stock or other securities or property of the successor corporation resulting from such reorganization, merger, consolidation, sale or transfer that a holder of the shares deliverable upon exercise of this Warrant would have been entitled to receive in such reorganization, consolidation, merger, sale or transfer if this Warrant had been exercised immediately before such reorganization, merger, consolidation, sale or transfer, all subject to further adjustment as provided in this Section 7. The foregoing provisions of this subsection 7(c) shall similarly apply to successive reorganizations, consolidations, mergers, sales and transfers and to the stock or securities of any other corporation that are at the time receivable upon the exercise of this Warrant. If the per-share consideration payable to the holder hereof for shares in connection with any such transaction is in a form other than cash or marketable securities, then the value of such consideration shall be determined in good faith by the Company's Board of Directors. In all events, appropriate adjustment (as determined in good faith by the Company's Board of Directors) shall be made in the application of the provisions of this Warrant with respect to the rights and interests of the Holder after the transaction, to the end that the provisions of this Warrant shall be applicable after that event, as near as reasonably may be, in relation to any shares or other property deliverable after that event upon exercise of this Warrant. As a condition to effecting any merger or consolidation of the Company or a sale of substantially all of its assets, the Company or the successor or surviving corporation, as the case may be, shall execute and deliver to the Holder an agreement as to the Holder's rights in accordance with this subsection 7(c), providing, to the extent of any right to purchase equity securities hereunder, for subsequent adjustments as nearly equivalent as may be practicable to the adjustments provided for in this Section 7. (d) Reclassification. If the Company, at any time while this Warrant, or any portion hereof, remains outstanding and unexpired by reclassification of securities or otherwise, shall change any of the securities as to which purchase rights under this Warrant exist into the same or a different number of securities of any other class or classes, this Warrant shall thereafter represent the right to acquire such number and kind of securities as would have been issuable as the result of such change with respect to the securities 4 that were subject to the purchase rights under this Warrant immediately prior to such reclassification or other change and the Exercise Price therefor shall be appropriately adjusted, all subject to further adjustment as provided in this Section 7. (e) Certain Dividends and Distributions. If the Company at any time while this Warrant is outstanding and unexpired shall make a distribution of its assets to it stockholders as a dividend in liquidation or by way of return of capital or other than as a dividend payable out of earnings or surplus legally available for dividends under applicable law, the Holder shall, upon exercise of this Warrant, be entitled to receive, in addition to the number of shares of Series I Preferred Shares receivable thereupon, and without payment of any additional consideration therefor, a sum equal to the amount of such assets as would have been payable to him as owner of that number of shares of Series I Preferred Shares receivable by exercise of this Warrant had he been the Holder of record of such Series I Preferred Shares on the record date for such distribution, or if no such record date is taken, as of the date of such distribution, and an appropriate provision therefor shall be made a part of any such distribution. (f) Issuance of Additional Shares of Capital Stock. If the Company at any time while this Warrant remains outstanding and unexpired shall issue any Additional Shares of Capital Stock (as defined below) (otherwise than as provided in the foregoing subsections (7)(a) through (7)(e) above) at a price per share less, or for other consideration lower, than the Exercise Price (the "Lower Price"), then upon such issuance the Exercise Price in effect immediately prior to such issuance shall be adjusted to equal the Lower Price. In determining the Lower Price in connection with issuances of the Company's Class A Common Stock ("Common Stock") pursuant to this subsection 7(f), and for purposes of subsections 7(g) and 7(h), the issue price per share of the Common Stock should be multiplied by the number of shares of Common Stock each share of Series I Preferred Shares is convertible into. The provisions of this subsection 7(f) shall not apply under any of the circumstances for which an adjustment is provided in subsections 7(a) through 7(e). No adjustment of the Exercise Price shall be made under this subsection 7(f) upon the issuance of any Additional Shares of Capital Stock which are issued pursuant to the exercise of any warrants, options or other subscription or purchase rights or pursuant to the exercise of any conversion or exchange rights in any convertible securities if any such adjustments shall previously have been made upon the issuance of any such warrants, options or other rights or upon the issuance of any convertible securities (or upon the issuance of any warrants, options or any rights therefor) pursuant to subsections 7(g) or 7(h) hereof. As used herein, "Additional Shares of Capital Stock" shall mean any shares of Common Stock or Series I Preferred Shares (collectively, "Capital Stock"), except any shares of Capital Stock issued through the exercise of options pursuant to a stock option, equity, or similar plan of the Company approved by the Company's stockholders and directors. (g) Issuance of Warrants, Options or Other Rights. In case the Company shall issue any warrants, options or other rights to subscribe for or purchase any Additional Shares of Capital Stock and the price per share for which Additional Shares of Capital Stock may at any time thereafter be issuable pursuant to such warrants, options or other rights shall be a Lower Price, then upon such issuance the Exercise Price shall be adjusted as provided in subsection7(f) hereof on the basis that the aggregate consideration for the Additional Shares of Capital Stock issuable pursuant to such warrants, options or other rights, shall be deemed to be the consideration received by the Company for the issuance of such warrants, options, or other rights plus the additional consideration payable to the Company upon the exercise of such warrants, options or other rights. 5 (h) Issuance of Convertible Securities. In case the Company shall issue any securities (debt or equity) convertible into Additional Shares of Capital Stock and the consideration per share for which Additional Shares of Capital Stock may at any time thereafter be issuable pursuant to the terms of such convertible securities shall be a Lower Price, then upon such issuance the Exercise Price shall be adjusted as provided in subsection 7(f) hereof on the basis that (i) the maximum number of Additional Shares of Capital Stock necessary to effect the conversion or exchange of all such convertible securities shall be deemed to have been issued as of the date of issuance of such convertible securities, and (ii) the aggregate consideration for such maximum number of Additional Shares of Capital Stock shall be deemed to be the consideration paid or payable to the Company in respect of the subscription for or purchase of such convertible securities, plus the additional consideration, if any, payable to the Company upon the exercise of the right of conversion or exchange in such convertible securities. No adjustment of the Exercise Price shall be made under this subsection upon the issuance of any convertible securities which are issued pursuant to the exercise of any warrants or other subscription or purchase rights therefor, if any such adjustment shall previously have been made upon the issuance of such warrants or other rights pursuant to subsection 6(g) hereof. (i) Other Provisions Applicable to Adjustments Under this Section. The following provisions will be applicable to the making of adjustments in the Exercise Price hereinabove provided in this Section 7: (i) Computation of Consideration. To the extent that any Additional Shares of Capital Stock or any warrants, options or other rights to subscribe for or purchase any Additional Shares of Capital Stock, or any securities (debt or equity) convertible into Additional Shares of Capital Stock shall be issued for cash consideration, the consideration received by the Company therefor shall be deemed to be the amount of the cash received by the Company therefor, or, if such Additional Shares of Capital Stock or convertible securities (debt or equity) are offered by the Company for subscription, the subscription price, or, if such Additional Shares of Capital Stock or convertible securities (debt or equity) are sold to underwriters or dealers for public offering without a subscription offering, or through underwriters or dealers for public offering without a subscription offering, the public offering price, in any such case excluding any amounts paid or incurred by the Company for and in the underwriting of, or otherwise in connection with the issue thereof. To the extent that such issuance shall be for a consideration other than cash, then, except as herein otherwise expressly provided, the amount of such consideration shall be deemed to be the fair value of such consideration at the time of such issuance as determined in good faith by the Company's Board of Directors. In case of the issuance at any time of any Additional Shares of Capital Stock or convertible securities (debt or equity) in payment or satisfaction of any dividend upon any class of stock preferred as to dividends in a fixed amount, the Company shall be deemed to have received for such Additional Shares of Capital Stock or convertible securities a consideration equal to the amount of such dividend so paid or satisfied. (ii) Other Action Affecting Capital Stock. In case after the date hereof the Company shall take any action affecting the Capital Stock, other than an action described in any of the foregoing subsections (6)(a) to (6)(h) hereof, inclusive, which in the opinion of the Company's Board of Directors would have a materially adverse effect upon the rights of the Holder to purchase the Warrant Shares, the 6 Exercise Price shall be adjusted in such manner and at such time as the Board of Directors may in good faith determine to be equitable in the circumstances. (j) Notice of Certain Actions. Not less than 10 nor more than 30 days prior to the record date or effective date, as the case may be, of any action which will require an adjustment or readjustment pursuant to this Section 7, the Company shall give notice to the Holder of such event, describing in such detail and specifying the record date or effective date, as the case may be, and, if determinable, the required adjustment and the computation thereof. If the required adjustment is not determinable at the time of such notice, the Company shall give notice to the Holder of such adjustment and computation promptly after such adjustment becomes determinable. 8. Transfer to Comply with the Securities Act. (a) Neither this Warrant, the Warrant Shares, any other security issued or issuable upon exercise of this Warrant, nor any interest therein may be sold, transferred or otherwise disposed of except to a person who, in the opinion of counsel reasonably satisfactory to the Company, is a person to whom this Warrant or such Warrant Shares may legally be transferred pursuant to Section 5 hereof without registration and without the delivery of a current prospectus under the Securities Act with respect thereto, and then only upon compliance by the Holder and such purchaser with the requirements of Section 5 and receipt by the Company of an agreement of such person to comply with the provisions of this Warrant with respect to any resale or other disposition of this Warrant and/or such securities, as applicable. (b) If the Warrant Shares are not subject to an effective registration statement under the Securities Act and applicable state securities laws, the Holder shall represent that the Warrant Shares to be issued upon exercise hereof are being acquired for the account of the Holder for investment purposes and not with a view to, or for resale in connection with, the distribution thereof and that the Holder will not offer, sell or otherwise dispose of such Warrant Shares except under circumstances which will not result in a violation of the Securities Act and all applicable state securities laws. The Holder represents that the Holder has no present intention of distributing or reselling the Warrant Shares. (c) The Company may cause the following legend, or one of similar substance, to be set forth on each certificate representing Warrant Shares or any other security issued or issuable upon exercise of this Warrant, unless the Holder delivers an opinion of counsel satisfactory to the Company that such legend is unnecessary: THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, OR PURSUANT TO ANY STATE SECURITIES LAWS. THESE SHARES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED UNLESS SUCH ARE FIRST REGISTERED PURSUANT TO THE APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR UNLESS THE COPORATION RECEIVES A WRITTEN OPINION OF COUNSEL WHICH OPINION AND COUNSEL ARE SATISFACTORY TO THE CORPORATION, THAT SUCH REGISTRATION IS NOT REQUIRED. 9. Governing Law. This Warrant shall be governed by, and construed in accordance with, the laws of the State of Nevada. 7 10. Modification and Waiver. This Warrant and any provision hereof may be modified, amended, waived or discharged only by an instrument in writing signed by the party against which enforcement of the same is sought. 11. Notice. Notices and other communications to be given to the Holder shall be delivered by hand or mailed, postage prepaid, to such address as the Holder shall have designated by written notice to the Company as provided in this Section. Notices or other communications to the Company shall be deemed to have been sufficiently given if delivered by hand or mailed postage prepaid to the Company at 5175 West 2100 South, West Valley City, Utah 84120, Attn: Chief Executive Officer, or such other address as the Company shall have designated by written notice to the Holder as provided in this Section. Notice by mail shall be deemed given when deposited in the United States mail, postage prepaid, as herein provided. 12. Construction. The descriptive headings of the several paragraphs and sections of this Warrant are inserted for convenience only and do not constitute a part of this Warrant. Unless otherwise indicated, references to sections shall be construed as references to the corresponding sections of this Warrant. IN WITNESS WHEREOF, the Company and the Purchaser have executed this Warrant effective as of the 30th day of June, 2001. SIMON TRANSPORTATION SERVICES INC., a Nevada corporation By:__________________________________________ Alban B. Lang, Chief Financial Officer, Treasurer, and Secretary MOYES CHILDREN'S LIMITED PARTNERSHIP By:__________________________________________ Ronald Moyes, General Partner 8 EXHIBIT A NOTICE OF EXERCISE TO: SIMON TRANSPORTATION SERVICES INC. (the "Company"): 1. The undersigned holder of the attached warrant (the "Warrant") hereby elects to purchase _____________________ Warrant Shares (as defined in the Warrant). 2. Please issue a certificate or certificates representing such Warrant Shares in the name of the undersigned. _______________ (DATE) _________________________________ (SIGNATURE) _________________________________ (PRINT OR TYPE NAME) EXHIBIT B ASSIGNMENT FORM Dated: ____________________ FOR VALUE RECEIVED, _____________________ hereby sells, assigns, and transfers unto ______________________ (please type or print) ______________________________ (address) the right to purchase Series I Preferred Shares represented by the warrant attached hereto to the extent of _____________ shares as to which such right is exercisable and does hereby irrevocably constitute and appoint Simon Transportation Services Inc. (the "Company") and/or its transfer agent as attorney to transfer the same on the books of the Company with full power of substitution in the premises. ________________________________ (SIGNATURE) EX-99 4 subscription.txt SUBSCRIPTION AGREEMENT SIMON TRANSPORTATION SERVICES INC. (a Nevada corporation) SUBSCRIPTION AGREEMENT THIS SUBSCRIPTION AGREEMENT (this "Agreement") is made effective as of June 30, 2001, by and between the Moyes Children's Limited Partnership (the "Subscriber"), and Simon Transportation Services Inc., a Nevada corporation (the "Company" and together with the Subscriber the "Parties"). RECITALS WHEREAS, the Company has received certain advances from the Subscriber to (i) allow the Company's operating subsidiary to assure compliance with the tangible net worth covenant and advance rate on its line of credit and (ii) maintain the financial position and viability of the Company and its operating subsidiary; WHEREAS, the Parties desire to convert the outstanding amount of such advances to equity; WHEREAS, the Company has duly authorized the issuance and sale of an aggregate of 600,000 shares of the Company's Series I Preferred Shares, $.01 par value (the "Preferred Shares"), with such rights, preferences, and limitations as are set forth in the Company's Certificate of Designation, attached hereto as Exhibit A (the "Certificate"), and as otherwise afforded holders of preferred shares under the Nevada General Corporation Law; and WHEREAS, the Parties wish to reduce to written form the commitments and undertakings contained herein. NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants, and undertakings set forth in this Agreement, and subject to the terms and conditions set forth in this Agreement, the Parties hereby agree as follows: TERMS 1. Subscriptions. 1.1 Subscriber hereby subscribes for 190,705 shares of Preferred Shares, representing advances by the Subscriber of $6,674,682.25 divided by a price of $35.00 per share (the "Subscription"). 1.2 Subscriber has tendered to the Company the entire purchase price of the shares subscribed for herein through prior advances. The subscription documents shall consist of an executed counterpart of the signature page of this Agreement. 1.3 The Parties acknowledge and agree that the Subscription shall be effective as of June 30, 2001, irrespective of the filing date of the Certificate. 2. Subscriber's Representations and Warranties. Subscriber represents, warrants, acknowledges, and agrees that: 2.1 Subscriber is a limited partnership formed under the laws of the State of Arizona, and has its principal office in such state. 2.2 Subscriber is authorized and qualified to become a stockholder of the Company and the person signing this Agreement on behalf of such entity has been duly authorized by such entity to do so. 2.3 Subscriber qualifies as an "accredited investor" (as defined under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the "Act")). 2.4 Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Company and has obtained sufficient information from the Company to evaluate the merits and risks of an investment in the Company. 2.5 Subscriber: (i) is acquiring the shares of the Preferred Shares subscribed for herein for Subscriber's own account for investment only and not with a view to the distribution, resale, or transfer thereof, and as the sole record and beneficial holder thereof; (ii) is acquiring such Preferred Shares without any intention of reselling or distributing such Preferred Shares except in accordance with the provisions of the Act and applicable state securities laws and regulations; and (iii) agrees that such Preferred Shares shall not be sold, pledged, hypothecated, donated, or otherwise transferred, whether or not for consideration, by Subscriber except subject to the terms of this Agreement and upon the issuance to the Company of a favorable opinion of its counsel acceptable to the Company and the submission to the Company of such other evidence as may be satisfactory to the Company and its counsel, to the effect that any such transfer shall not be in violation of the Act, applicable state securities laws, or any rules or regulations promulgated thereunder. 3. Company's Representations and Warranties. The Company represents, warrants, acknowledges, and agrees that: 3.1 The Company is a corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation. 3.2 The Company has full power and authority (including full corporate power and authority) to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement constitutes the valid and legally binding obligation of the Company, enforceable in accordance with its terms and conditions. 3.3 The Company has filed all forms, reports, schedules, statements, and documents required to be filed by it with the Securities and Exchange Commission (collectively, the "Company Public Reports"). Each of the Company Public Reports was filed on a timely basis (considering filed extensions) and complied with the Act and the Securities Exchange Act of 1934, as amended, in all material respects. None of the Company Public Reports, as of their respective dates, (or if amended or superseded, at the time of such subsequent filing), contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. 3.4 All of the outstanding shares of the Preferred Shares have been duly authorized, validly issued, fully paid and nonassessable, are not subject to, and were not issued in violation of, any preemptive (or similar) rights, and are owned, of record and beneficially, by the Company, free and clear of all Liens whatsoever. 3.5 The Company will promptly seek any consent, approval, qualification, or authorization necessary in connection with the Company's valid performance of this Agreement. 4. Miscellaneous. 4.1 Successors and Assigns. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties (including transferees). Nothing in this Agreement, express or implied, is intended to confer upon any party other than the Parties hereto, or their respective successors and assigns, any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. 4.2 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which when executed and delivered shall be deemed to be an original, and all of which counterparts taken together shall constitute but one and the same instrument. This Agreement shall become binding when one or more counterparts taken together shall have been executed and delivered by the Parties. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any other counterparts. 4.3 Severability. In case any one or more of the provisions or parts of a provision contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision or part of a provision of this Agreement or any other jurisdiction, but this Agreement shall be reformed and construed in any such jurisdiction as if such invalid, illegal, or unenforceable provision or part of a provision had never been contained herein and such provision or part shall be reformed so that it would be valid, legal, and enforceable to the maximum extent permitted in such jurisdiction. 4.4 Entire Agreement and Amendment. This Agreement, the Warrant to Purchase Series I Preferred Shares, and the letter agreement, all dated June 30, 2001, by and between the Parties, constitute the entire agreement by and between the Parties with respect to the subject matter hereof. Any provision of this Agreement may be amended and the observance thereof may be modified, waived, or terminated in whole or in part (either generally or in a particular instance and either retroactively or prospectively), only by the written consent of (i) as against the Company, only by the Company, and (ii) as against the Subscriber, only by the Subscriber. Any amendment or waiver effected in accordance with clauses (i) and (ii) of this paragraph shall be binding upon the Company and the Subscriber and its or his successors and assigns. 4.5 Further Action. Each of the Parties hereto agrees to execute all such further instruments and documents and to take all such further action necessary to effectuate the terms and purposes of this Agreement. 4.6 Governing Law. This Agreement and all documents contemplated hereby, and all remedies in connection therewith, and all questions or transactions relating thereto, shall be construed in accordance with and governed by the laws of the State of Nevada. 4.7 Notice. Whenever notice is required to be given by any party hereunder, such notice shall be deemed sufficient when delivered personally against receipt or by prepaid, first-class certified mail to the Company or the Subscriber at their addresses set forth on the signature page hereto or to such other address as the Company or the Subscriber shall have furnished to the party sending notice. 4.8 Survival. All representations, warranties, and covenants herein shall survive the consummation of the transaction contemplated hereby and the delivery of the shares hereunder. 4.9 Legend. Certificates representing the shares subscribed for hereunder are subject to stop transfer instructions issued by the Company to the transfer agent prohibiting transfers thereof without registration under the Act or unless an exemption from the registration requirements of the Act is available in the opinion, addressed to the Company, of counsel acceptable to the Company. Certificates evidencing ownership of shares subscribed for hereunder shall bear the following legend: THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, OR PURSUANT TO ANY STATE SECURITIES LAWS. THESE SHARES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED UNLESS SUCH ARE FIRST REGISTERED PURSUANT TO THE APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR UNLESS THE COPORATION RECEIVES A WRITTEN OPINION OF COUNSEL WHICH OPINION AND COUNSEL ARE SATISFACTORY TO THE CORPORATION, THAT SUCH REGISTRATION IS NOT REQUIRED. IN WITNESS WHEREOF, each of the undersigned has signed this Agreement on the date first above written. THE SUBSCRIBER THE MOYES CHILDREN'S LIMITED PARTNERSHIP By: __________________________________________ Ronald Moyes, General Partner Address: 411 S. 13th Street Lincoln, Nebraska 68508 THE COMPANY SIMON TRANSPORTATION SERVICES INC. By: ___________________________________________ Alban B. Lang, Chief Financial Officer, Secretary, and Treasurer Address: 5175 West 2100 South West Valley City, Utah 84120 EXHIBIT A COMPANY'S CERTIFICATE OF DESIGNATION EX-99 5 certificate.txt CERTIFICATE OF DESIGNATION SIMON TRANSPORTATION SERVICES INC. CERTIFICATE OF DESIGNATION, PREFERENCES, RIGHTS AND LIMITATIONS OF 600,000 SERIES I PREFERRED SHARES Simon Transportation Services Inc., a corporation organized under the laws of the State of Nevada (hereinafter called the "Corporation"), in accordance with Section 78.1955 of the Nevada General Corporation Law, does hereby certify as follows: A. That pursuant to Article IV of the Articles of Incorporation of the Corporation, the Corporation is authorized to issue 5,000,000 Preferred Shares, par value one cent ($0.01) per share, and the Board of Directors of the Corporation is expressly authorized to fix, to the extent permitted by Nevada law and said Article IV the designation, description, and certain of the terms with respect to each particular series of Preferred Shares. B. That the Equity Issuance Committee of the Board of Directors of the Corporation, acting pursuant to the Corporation's Bylaws and the Nevada General Corporation Law, by unanimous written consent dated June 30, 2001, duly adopted a resolution authorizing the issuance of up to 600,00 shares of the Corporation's one cent ($0.01) per share, authorized and unissued, Preferred Shares designated as "Series I Preferred Shares", and fixed the preferences, and relative, participating, optional, and special rights and limitations and restrictions thereof as follows: 1. Voting Rights. Except as herein or by law expressly provided, each share of the Series I Preferred Shares shall have the right or power to cast ten votes on any question or in any proceeding or to be represented at or to receive notice of any meeting of the stockholders of the Corporation. 2. Preference on Liquidation. 2.1 General. Subject to the remaining provisions of this Section 2, in the event of any liquidation, dissolution, or winding up of the affairs of the Corporation, whether voluntary or involuntary, or any reduction in its capital resulting in any distribution of assets to its stockholders, after payment or provision for payment of the debts and liabilities of the Corporation, the holders of the Series I Preferred Shares shall be entitled to receive, out of the remaining assets of the Corporation, the amount of $35.00 in cash for each of the Series I Preferred Shares they then hold, plus an amount equal to all dividends accumulated and unpaid on each such share through the date fixed for distribution, before any distribution shall be made to the holders of any Common Shares or any other class or series of capital shares of the Corporation ranking junior to the Series I Preferred Shares. If upon any liquidation, dissolution, or winding up of the affairs of the Corporation, whether voluntary or involuntary, the assets of the Corporation available for distribution to stockholders shall be insufficient to permit the payment to the holders of the Series I Preferred Shares of the aforesaid preferential amounts, then the entire assets of the Corporation shall be distributed ratably among the holders of the Series I Preferred Shares then outstanding according to the number of shares held by each. 2.2 Liquidation Defined. The purchase or redemption by the Corporation of shares of any class, in any manner permitted by law, shall not for the purpose of this Section be regarded as a liquidation, dissolution, or winding up of the Corporation or as a reduction of its capital. Neither the consolidation nor merger of the Corporation with or into any other corporation or corporations, nor 1 the sale or transfer by the Corporation of all or any part of its assets, shall be deemed to be liquidation, dissolution, or winding up of the Corporation for the purposes of this section. A dividend or distribution to stockholders from net profits or surplus earned after the date of any reduction of capital shall not be deemed to be a distribution resulting from such reduction in capital. No holder of Series I Preferred Shares shall be entitled to receive any amounts with respect thereto upon any liquidation, dissolution, or winding up of the Corporation other than the amounts provided for in Section 2.1. 2.3 No Restriction on Surplus. No provision of this Section 2 shall in any manner, prior to any liquidation, dissolution, or winding up of the affairs of the Corporation, whether voluntary or otherwise, create or be deemed to create any restrictions upon the surplus of the Corporation or prohibit the payment of dividends on the capital shares of the Corporation out of the funds of the Corporation legally available therefor, nor shall any such restriction or prohibition be in any manner inferred from the provisions of this Section 2. 3. Dividends. Dividends on each share of the Series I Preferred Shares shall accrue quarterly at the rate of ten-percent per annum from the date of issuance, based upon the $35.00 per share value. In the event the Corporation, at any time subsequent to the date the Series I Preferred Shares becomes convertible to Class A Common Shares pursuant to Section 4, shall pay to the holders of Common Shares a dividend, the holders of Series I Preferred Shares shall be entitled to receive the same kind and the same proportionate shares of such property being paid as a dividend which they would have been entitled to receive had their Series I Preferred Shares been converted immediately prior to the record date for payment of such dividend. 4. Conversion. 4.1 Conversion Option. Upon written notice to the Corporation as described in Section 4.2.1., the holders of all issued and outstanding Series I Preferred Shares shall have the right to convert such Series I Preferred Shares into Class A Common Shares on the basis of one Series I Preferred Share for ten (10) fully paid and non-assessable Class A Common Shares of the Corporation exercisable at the earliest to occur of (i) September 30, 2001; (ii) the date immediately preceding any merger, consolidation, recapitalization, reorganization, or other similar transaction or series of transactions, whether or not the Corporation is the surviving corporation, in which the Moyes Children's Limited Partnership, Jerry Moyes, or Vickie Moyes, and their affiliates (the "Moyes Group") together beneficially own shares having the power to cast less than thirty percent of the votes entitled to be cast at meetings of stockholders; (iii) the date immediately preceding any sale of stock, tender offer, or other transaction or series of transactions in which any person, corporation, or other entity or group thereof, other than the Moyes Group (the "Acquiror"), acquires the beneficial ownership of shares of the Corporation's stock which, when added to any other shares, the beneficial ownership of which is held by the Acquiror, shall have more than fifty percent of the votes that are entitled to be cast at meetings of stockholders; or (iv) the date immediately preceding any sale of all or substantially all assets of the Corporation and its subsidiaries. 4.2 Terms and Provisions Applicable to Conversion. Conversion of Series I Preferred Shares shall be subject to the following additional terms and provisions: 4.2.1 Any holder of Series I Preferred Shares converting such Series I Preferred Shares into Class A Common Shares shall surrender the certificate or certificates representing the Series I Preferred Shares so to be converted, duly endorsed to the Corporation or in blank, at the principal office of the Corporation (or such other place as 2 may be designated by the Corporation), and shall give written notice to the Corporation at said office that the certificates are being submitted for conversion, setting forth the name or names (with the address or addresses) in which the Class A Common Shares are to be issued. 4.2.2 As promptly as practicable after the surrender for conversion of any Series I Preferred Shares, the Corporation shall deliver or cause to be delivered at the principal office of the Corporation (or such other place as may be designated by the Corporation), to or upon the written order of the holder of such Series I Preferred Shares, certificates representing the Class A Common Shares issuable upon such conversion, issued in such name or names as such holder may direct. Series I Preferred Shares shall be deemed to have been converted as of the date Certificates representing the Class A Common Shares of the Corporation have been issued, and the rights of the holders of such Series I Preferred Shares shall cease at such time, and the person or persons in whose name or names the certificates for such shares are to be issued shall be treated for all purposes as having become the record holder or holders of such Class A Common Shares at such time. 4.2.3 The Corporation shall at the time of such conversion pay to the holder of record of any Series I Preferred Shares any accrued but unpaid dividends on said Series I Preferred Shares so surrendered for conversion. 4.2.4 In the event that the Corporation shall at any time subdivide or combine in a greater or lesser number of outstanding Common Shares, the number of Common Shares issuable upon conversion of the Series I Preferred Shares shall be proportionately increased in the case of subdivision or decreased in the case of a combination, effective in either case at the close of business on the date when such subdivision or combination shall become effective. 4.2.5 In the event that the Corporation shall be recapitalized, consolidated with or merged into any other corporation, or shall sell or convey to any other corporation all or substantially all of its property as an entirety, provision shall be made as part of the terms of such recapitalization, consolidation, merger, sale, or conveyance so that any holder of Series I Preferred Shares shall receive in such transaction in lieu of the Class A Common Shares otherwise issuable to it upon conversion of its Series I Preferred Shares, but at the conversion ratio stated in Section 4.1, the same kind and amount of securities or assets as may be distributable upon such recapitalization, consolidation, merger, sale, or conveyance, with respect to the Class A Common Shares of the Corporation. 4.2.6 The Corporation shall at all times reserve and keep available solely for the purpose of issue upon conversion of Series I Preferred Shares, as herein provided, such number of Class A Common Shares as shall be issuable upon the conversion of all outstanding Series I Preferred Shares. 4.2.7 The issuance of certificates for Class A Common Shares upon conversion of the Series I Preferred Shares shall be made without charge for any tax in respect of such issuance. However, if any certificate is to be issued in a name other than that of the holder of record of the Series I Preferred Shares so converted, the person or persons requesting the issuance thereof shall pay to the Corporation any amount of any tax which may be payable 3 by the Corporation in respect of any transfer involved in such issuance, or shall establish to the satisfaction of the Corporation that such tax has been paid or is not due and payable. 4.2.8 Upon conversion of the Series I Preferred Shares to Class A Common Shares, the Series I Preferred Shares so converted shall be deemed cancelled and returned to authorized and unissued preferred shares, with no stated designation, rights, or preferences. 5. Restrictions. Certificates evidencing ownership of the Series I Preferred Shares are subject to stop transfer instructions issued by the Corporation to the transfer agent prohibiting transfers thereof without registration under the Securities Act of 1933 or unless an exemption from the registration requirements of said Act is available in the opinion, addressed to the Corporation, of counsel acceptable to the Corporation. Certificates evidencing ownership of Series I Preferred Shares shall bear the following legend: THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, OR PURSUANT TO ANY STATE SECURITIES LAWS. THESE SHARES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED UNLESS SUCH ARE FIRST REGISTERED PURSUANT TO THE APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR UNLESS THE COPORATION RECEIVES A WRITTEN OPINION OF COUNSEL, WHICH OPINION AND COUNSEL ARE SATISFACTORY TO THE CORPORATION, THAT SUCH REGISTRATION IS NOT REQUIRED. IN WITNESS WHEREOF, Simon Transportation Services Inc., has made this Certificate under the hand of its President and its Secretary this ______ day of August, 2001. SIMON TRANSPORTATION SERVICES INC. By:_______________________________ Kelle A. Simon, President By:_______________________________ Alban B. Lang, Secretary STATE OF UTAH ) ) ss. COUNTY OF ________________ ) The foregoing Certificate was acknowledged before me this ____ day of August, 2001, by Kelle A. Simon, President, and Alban B. Lang, Secretary, of Simon Transportation Services Inc., a Nevada corporation, on behalf of the corporation. Notary Public My Commission Expires:____________________ 4 -----END PRIVACY-ENHANCED MESSAGE-----