-----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, KJdbMXb8ie6ZU2YhYafsYM4EflVe1mRWDM5gxvEWhQ+gtJQND6JNtg+jT7yngcEr ggMzGv9jzHrWPL49QoESJg== 0000950137-97-000056.txt : 19970110 0000950137-97-000056.hdr.sgml : 19970110 ACCESSION NUMBER: 0000950137-97-000056 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19970109 EFFECTIVENESS DATE: 19970109 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: AASCHE TRANSPORTATION SERVICES INC CENTRAL INDEX KEY: 0000927809 STANDARD INDUSTRIAL CLASSIFICATION: TRUCKING (NO LOCAL) [4213] IRS NUMBER: 363964954 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-19475 FILM NUMBER: 97503317 BUSINESS ADDRESS: STREET 1: 10214 N MT VERNON RD CITY: SHANNON STATE: IL ZIP: 61078 BUSINESS PHONE: 8158642421 MAIL ADDRESS: STREET 1: 10214 N MT VERNON ROAD CITY: SHANNON STATE: IL ZIP: 61078 S-8 1 FORM S-8 1 Registration No. 33-_____________ As filed with the Securities and Exchange Commission on January 9, 1997 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _______________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 _______________________ AASCHE TRANSPORTATION SERVICES, INC. (Exact name of registrant as specified in its charter) DELAWARE 36-3964954 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification Number) 10214 NORTH MT. VERNON ROAD (815) 864-2421 SHANNON, ILLINOIS 61078 (Telephone number, including (Address, including zip code, of area code, of registrant's registrant's principal executive offices) principal executive offices)
AMENDED EMPLOYMENT AND STOCK OPTION AGREEMENT AND SEPARATION AGREEMENT (Full title of the plans) Mr. Larry L. Asche Copy to: Chairman and Chief Operating Officer Joel R. Schaider Aasche Transportation Services, Inc. Sachnoff & Weaver, Ltd. 10214 North Mt. Vernon Road 30 South Wacker Drive, Suite 2900 Shannon, Illinois 61078 Chicago, Illinois 60606 (815) 864-2421 (312) 207-1000
(Name, address, including zip code and telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------- Proposed maximum Proposed maximum Title of securities Amount to be offering price per aggregate offering Amount of to be registered (1) registered(1) share price registration fee(4) - ------------------------------------------------------------------------------------------------------------ Common Stock, $0.0001 par value 110,000(2) (3) (3) $166.67 - ------------------------------------------------------------------------------------------------------------
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein. (2) The amount being registered represents the estimated aggregate amount that could be contributed by the employees. The amount is estimated solely for the purposes of calculating the registration fee. This Registration Statement includes any additional shares of the Registrant's Common Stock that may be issued resulting from stock splits, stock dividends, or similar transactions. (3) The offering price is not known. (4) Pursuant to Rule 457(h), the registration fee was computed on the basis of the price of Aasche Transportation Services, Inc. Common Stock, determined on the basis of the average of the high and low prices ($5.00) of such stock on the Nasdaq National Market on January 7, 1997. 2 PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The document or documents containing the information specified in Part I are not required to be filed with the Securities and Exchange Commission as part of this Form S-8 Registration Statement. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents, which have heretofore been filed by Aasche Transportation Services, Inc. (the "Company") with the Securities and Exchange Commission (the "Commission"), are incorporated by reference in this Registration Statement, except to the extent that any statement or information therein is modified, superseded or replaced by a statement or information contained in any other subsequently filed document incorporated herein by reference: 1. The Company's Annual Report on Form 10-KSB for the fiscal year ended December 31, 1995; 2. The Company's Quarterly Reports on Form 10-Q for the periods ended March 31, 1996, June 30, 1996 and September 30, 1996; 3. The Company's Current Report contained on Form 8-K dated April 1, 1996; and 4. The description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-A dated July 26, 1994 (No. 0-24576), including any amendments or reports filed for the purpose of updating such descriptions. All documents filed by the Company or the Aasche Transportation Services, Inc. Stock Option Plan (the "Plan") pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof, and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. -1- 3 ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Article Six of the registrant's Certificate of Incorporation ("Article Six") is consistent with Section 102(b)(7) of the Delaware General Corporation Law, which generally permits a company to include a provision limiting the personal liability of a director in the company's certificate of incorporation. With limitations, Article Six eliminates the personal liability of the Company's directors to the registrant or its stockholders for monetary damages for breach of fiduciary duty as a director. However, Article Six does not eliminate director liability: (i) for breaches of the duty of loyalty to the registrant and its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) for transactions from which a director derives improper personal benefit; and (iv) under Section 174 of the Delaware General Corporation Law ("Section 174"). Section 174 makes directors personally liable for unlawful dividends and stock repurchases or redemptions and expressly sets forth a negligence standard with respect to such liability. While Article Six protects the directors from awards for monetary damages for breaches of their duty of care, it does not eliminate their duty of care. The limitations in Article Six have no effect on claims arising under the federal securities laws. The registrant's Certificate of Incorporation contains provisions that require the registrant to indemnify its directors and officers to the fullest extent permitted by Delaware law. Under Section 145 of the Delaware General Corporation law, directors and officers, as well as other employees and individuals, may be indemnified against expenses (including attorneys' fees), judgments, fines, amounts paid in settlement in connection with specified actions, suits, or proceedings, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the corporation -- a "derivative action") if they acted in good faith and in a manner they reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to criminal actions or proceedings, had no reasonable cause to believe their conduct was unlawful. A similar standard of care is applicable in the case of derivative actions, except that indemnification only extends to expenses (including attorneys' fees) incurred in connection with the defense or settlement of such an action, and the Delaware General Corporation Law requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The registrant's By-Laws contains provisions whereby the registrant shall indemnify and hold harmless the directors to the fullest extent permitted by applicable law against any and all reasonable attorneys' fees and all other reasonable expense, cost, liability and loss (including a -2- 4 mandatory obligation by the registrant to advance reimbursement of legal fees and expenses) paid or reasonably incurred by such director or on his or her behalf in connection with any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation not initiated by the director that he or she believes in good faith might lead to a proceeding, inquiry or investigation (a "Proceeding"), relating to the fact that the director is or was a director, officer, employee or agent of the registrant, or is or was serving at the request of the registrant as a director, officer, employee, trustee, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, or by reason of any action or inaction by the director in such capacity. However, the registrant's obligation to indemnify the director is subject to a determination by the registrant's Board of Directors that the director is entitled to indemnification. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. See Exhibit Index which is incorporated herein by reference. ITEM 9. UNDERTAKINGS. -3- 5 1. The undersigned registrant hereby undertakes: a. To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: i. To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; ii. To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and iii. To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. b. That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. c. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 2. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act and each filing of the Plan's annual report pursuant to Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to officers, directors, and controlling persons of the registrant pursuant to the registrant's certificate of incorporation or by-laws, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public -4- 6 policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer, or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. -5- 7 SIGNATURES THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Shannon, State of Illinois, on January 6, 1997. Aasche Transportation Services, Inc. By: /s/ Larry L. Asche ----------------------------------- Larry L. Asche, Chief Executive Officer POWER OF ATTORNEY We, the undersigned directors and officers of Aasche Transportation Services, Inc., hereby constitutes and appoints Larry L. Asche our true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for us and in our stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and all documents relating thereto, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing necessary or advisable to be done in and about the premises, as fully to all intents and purposes as we might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in their respective capacities on January 6, 1997. Signature Title --------- ----- /s/ Larry L. Asche - ------------------ Larry L. Asche Chairman and Chief Executive Officer and Director (Principal Executive Officer) /s/ Kevin M. Clark - ------------------ Kevin M. Clark President and Director /s/ Leon M. Monachos - -------------------- Leon M. Monachos Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) and Director /s/ Diane L. Asche - ------------------ Diane L. Asche Director /s/ Steven R. Green - ------------------- Steven R. Green Director /s/ Richard S. Baugh - -------------------- Richard S. Baugh Director /s/ Gary I. Goldberg - -------------------- Gary I. Goldberg Director -6- 8 EXHIBIT INDEX
Exhibit Sequential Number Description of Exhibit Page Number - ------- ---------------------- ----------- 4.1 Certificate of Incorporation of Aasche * Transportation Services, Inc., as amended 4.2 By-Laws of Aasche Transportation Services, Inc. * 5.1 Opinion of Sachnoff & Weaver, Ltd. with regard to the legality of the securities being registered. 23.1 Consent of Ernst & Young LLP with respect to the financial statements of the Company. 23.2 Consent of Sachnoff & Weaver, Ltd. (included in Exhibit 5.1) 24.1 Power of Attorney (contained on the signature page hereto) 99.1 Amended Employment and Stock Option Agreement dated July 22, 1996 between Polar Express Corporation, Aasche Transportation Services, Inc. and Trey Trumbo 99.2 Separation Agreement dated July 26, 1996 between Polar Express Corporation, Aasche Transportation Services, Inc. and Orin S. Neiman
- --------------------------- * Filed as an exhibit to Aasche Transportation Services, Inc. Registration Statement on Form SB-2, Registration Statement No. 33-81942C, declared effective by the Securities and Exchange Commission on September 23, 1994, and incorporated herein by reference. -7- EX-5.1 2 OPINION OF SACHNOFF & WEAVER 1 Exhibit 5.1 [SACHNOFF & WEAVER, LTD. LETTERHEAD] (312) 207-1000 January 8, 1997 The Board of Directors Aasche Transportation Services, Inc. 10214 N. Mt. Vernon Road Shannon, Illinois 61078 RE: REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: We have acted as counsel for Aasche Transportation Services, Inc. (the "Company") in connection with the Registration Statement on Form S-8 filed by the Company with the Securities and Exchange Commission (the "Commission") to effect the registration, pursuant to the Securities Act of 1933, of 110,000 shares of common stock, par value $.0001 per share, which may be offered by the Company under (i) a certain Amended Employment and Stock Option Agreement dated as of July 22, 1996 between the Company, Polar Express Corporation ("Polar") and Trey Trumbo; and (ii) a certain Separation Agreement dated July 26, 1996 between the Company, Polar and Orin S. Neiman (collectively, "Agreements"). In connection with this matter, we have examined such documents, corporate records and other instruments as we have deemed necessary for the purposes of this opinion. Based on the foregoing, it is our opinion that the 110,000 shares of common stock, par value $.0001 per share, which will be offered by the Company pursuant to the Agreements, when issued and paid for as described in said Registration Statement, will be legally issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Sachnoff & Weaver, Ltd. --------------------------- Sachnoff & Weaver, Ltd. JRS/JNS EX-23.1 3 CONSENT OF ERNST & YOUNG, LLP. 1 Exhibit 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to 110,000 of common shares of Aasche Transportation Services, Inc. of our report dated March 1, 1996, with respect to the consolidated financial statements of Aasche Transportation Services, Inc., included in the Annual Report to Shareholders (Form 10-KSB) for the year ended December 31, 1995. /s/ Ernst & Young LLP - --------------------- Ernst & Young LLP Chicago, Illinois January 7, 1997 EX-99.1 4 EMPLOYMENT AND STOCK OPTION AGREEMENT 1 Exhibit 99.1 AMENDED EMPLOYMENT AND STOCK OPTION AGREEMENT This Amended Employment and Stock Option Agreement (this "Agreement") is entered into as of July 22, 1996, between Polar Express Corporation, a Delaware corporation (the "Company"), Aasche Transportation Services, Inc., a Delaware corporation (the "Parent"), and Trey Trumbo (the "Executive") ("Parent" and "Company" hereinafter referred to as "Aasche"). WITNESSETH THAT: WHEREAS, Company, Parent, and Executive have a binding Employment and Stock Option Agreement dated December 21, 1995; and WHEREAS, the Company has informed Executive it wishes to restructure, thus eliminating the Executive's position; and WHEREAS, Company, Parent and Executive agree that the previous Employment and Stock Option Agreement is a binding contract requiring Company to pay compensation thereunder; and WHEREAS, the parties wish to amend the Employment and Stock Option Agreement to reduce compensation and eliminate any required duties. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below, it is hereby covenanted and agreed by the parties as follows: 1. Duties: The Executive shall provide such services and perform such duties as he deems necessary. Any duties or services provided shall be at the times and places determined solely by the Executive. Company shall have no rights to require the Executive to perform any duties. The parties agree that Executive is no longer an officer 2 of Company or Parent. Moreover, Executive has no authority to act on behalf of Aasche, and he shall not take any actions which could bind the Company. 2. Compensation, Severance and Benefits: (a) The Executive shall be compensated as an employee from execution of this agreement until August 30, 1996, at an annual salary of $100,000 payable in weekly installments. (b) From and after August 30, 1996, until December 31, 1996, the Executive shall receive an annual salary of $53,400.00 payable in weekly installments. (c) From and after January 1, 1997, until August 25, 1999, the Executive shall receive severance pay of $59,900.00 annually payable in weekly installments. After December 31, 1996, the Executive shall no longer be an employee of Company. (d) The Company will pay the entire cost of its normal medical insurance to Executive and his family until the earlier of March 1, 1998 or until the executive is employed by another employer who offers insurance to executive as part of his compensation package. (e) Company shall continue to make monthly payments on Employee's vehicle until April of 1997, when such vehicle will be paid in full. The Company shall continue to provide at its sole cost insurance on such vehicle with the same deductibles and coverage currently in place until June 1, 1997. (f) It is understood that Executive has in his possession computer hardware and software which is at the Executive's home and a lap top computer with printer and software which is used by the Executive at the office. Some of the hardware and/or software on both systems were purchased by the Company; however, it will be the sole property of Executive. The Executive agrees to copy all data relating to Company which is contained on the computers and provide Company a copy of such data. (g) The parties understand and agree that Executive shall remain an employee of Company for all purposes including purposes of Company's profit sharing and other pension plans through December 31, 1996. The parties understand and agree that beginning January 1, 1997, Executive shall no longer be an employee of Company for such purposes. 3. Stock Option: All existing Options granted to Executive prior to the date of this Agreement including, but not limited to, Options granted under Aasche 2 3 Transportation Services, Inc. 1995 Incentive Stock Option Plan or the Polar Express Corporation 1994 Stock Option Plan are hereby terminated. Parent hereby grants to the Executive the right an option (the "Option") to purchase 60,000 shares of Common Stock (the "Shares") on the terms and conditions set forth in this paragraph. (a) The Shares subject to this Option shall become exercisable in whole on July 22, 1996, and the deadline for exercising the Option shall be August 25, 1999. (b) The Executive shall exercise the Option by delivery to Parent of a duly executed copy of the purchase from attached hereto as Exhibit "A". The Option price (as hereinafter defined) shall be paid by full payment in cash. (c) The Option price shall be the closing price on the date of the execution of this agreement subject to adjustment provisions described below, provided; however, that in the case Parent should at any time subdivide the outstanding shares of common stock or shall issue a stock dividend on its outstanding common stock, the Option price in effect immediately prior to such subdivision or the issuance of such dividend should be proportionately decreased and in case Parent shall at any time combine the outstanding shares of common stock, the Option price in effect immediately prior to such combination shall be proportionately increased effective at the close of business on the date of such subdivision, dividend, combination, as the case may be. Notwithstanding the foregoing, in the event the closing price on any of December 21, 1996, December 21, 1997, or December 21, 1998 (the "Relevant Date") of the Parent's Common Stock on the Nasdaq Stock Market shall be less than the Option Price, the Option Price for the Shares underlying the unexercised options, shall be adjusted to the closing price of the Parent's Common Stock on such Relevant Date. (d) The number of Shares shall be 60,000; provided, however, that in case the Parent should at any time subdivide the outstanding shares of Common Stock, or shall issue a stock dividend on its outstanding Common Stock, the number of Shares subject to the Option immediately prior to such subdivision or the issuance of such dividend shall be proportionately increased, and in case the Parent shall at any time combine the outstanding shares of Common Stock, the number of Shares subject to the Option immediately prior to such combination shall be proportionately decreased, effective at the close of business on the date of such subdivision, dividend, or combination, as the case may be. (e) Within ten business days after the exercise of the Option, the Parent shall cause to be issued in the name of and delivered to the Executive a certificate or certificates for the Shares and the Executive shall deliver payment of the Option Price in the form described in (b) above. The Parent covenants that (A) all Shares issued and 3 4 delivered upon the due exercise of the Option by the Executive shall, upon such issuance and delivery, be fully paid and nonassessable, and (B) the Parent shall agree at all times to reserve and hold available a sufficient number of shares of its authorized but unissued Common Stock to provide for delivery of the Shares upon the exercise of the Option. (f) Parent agrees that such shares shall be registered and freely transferable on the public markets by December 15, 1996. Parent shall pay all costs and expenses of such registration. (g) Parent and Employee agree that options granted herein do not have a readily ascertainable fair market value at the time they were granted as defined by Section 83 of the Internal Revenue Code. Although both parties agree to act consistently with such representation, neither party shall be liable to the other in the event it is determined such options did have a readily ascertainable fair market value at the time they were granted. 4. Pinnacle Membership: Company agrees to pay no more than the sum of Two Thousand One Hundred Dollars for a membership at Pinnacle County Club which will allow Executive to play the golf course. Any amount over Two Thousand One Hundred Dollars shall be paid by Executive. 5. Security: All payments hereunder shall be secured by an irrevocable letter of credit expiring August 25, 1999, in the sum of One Hundred Fifty Thousand Dollars ($150,000.00). Said irrevocable letter of credit shall provide that the issuing bank shall pay amounts up to One Hundred Fifty Thousand Dollars ($150,000.00) upon presentation of a draft by Executive. The form of the letter of credit and drafts required by the lending institution must be acceptable to Executive with such acceptance not to be unreasonably withheld. It is agreed that Aasche may reduce the letter of credit from time to time so long as the letter of credit is sufficient to pay all consideration remaining unpaid to Executive pursuant to this Agreement. Prior to such reduction, Company must first 4 5 obtain Executive's written approval; however, Executive should not withhold such approval without good reason. In the event that Company defaults on an obligation otherwise allowing the Executive to draw on the letter of credit, the Executive agrees to provide Aasche notice of such default or failure to pay. Aasche shall have ten days from receipt of the notice of default to cure the default. If Aasche fails to cure such default, Executive may draw on the line of credit. Any such draw shall be equal to all consideration remaining unpaid to Executive for the entire remaining term of the Agreement. The term "all consideration" shall include, and be limited to, payments required pursuant to paragraph 2(a), 2(b), 2(c), 2(d) and 2(e). 6. Binding Effect: This Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties. Nothing in this Agreement, expressed or implied, is intended to confer upon any person or entity other than the parties hereto or their respective successors and assigns, any rights or benefits under or by reason of this Agreement. This Agreement shall not be assignable by either party hereto without the prior written consent of the other. 7. Integration Clause: This Agreement represents and contains the entire and only agreement and understanding among the parties with respect to its subject matter and supersedes any and all other prior and contemporaneous oral and written agreements, understandings, representations, inducements, promises, warranties, and conditions among the parties. 5 6 8. Modification: This Agreement may not be amended or modified except by an agreement in writing signed by an authorized representative of the party against whom the enforcement of any modification or amendment is sought. 9. Joint Draftsmanship: Each of the parties participated in the drafting of this Agreement intending for the language to be clear and unambiguous. The parties jointly accept responsibility for any ambiguities in this Agreement. 10. Governing Laws: This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Arkansas. 11. Litigation Costs: If any legal action or other proceeding is brought for the enforcement of this Agreement, the losing or defaulting party shall pay to the prevailing party reasonable attorneys' fees, costs and expenses incurred in connection with the prosecution of defense of the action. 12. Notices: All notices, requests, demands, claims and other communications hereunder shall be in writing. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given (i) three (3) business days after it is sent by registered or certified mail, return receipt requested, postage prepaid, (ii) when receipt is electronically confirmed, if sent by fax (provided that a hard copy shall be promptly sent by first class mail), or (iii) one (1) business day following deposit with a recognized national overnight courier service for next day delivery, charges prepaid, and, in each case, addressed to the intended recipient as set forth below: 6 7 If to Company or Parent: Aasche Transportation Service, Inc. 10214 North Mt. Vernon Road Shannon, Illinois 61078 Attn: Larry L. Asche, Chairman Fax No. (815) 864-2299 If to Executive: Trey Trumbo c/o Stockland & Trantham, P.A. 21 South Block Street Fayetteville, Arkansas 2701 Fax No. (501) 521-3608
13. General Release of Claims and Hold Harmless: Executive and Company hereby generally release and forever discharge each other from any claims, demands, obligations, losses, causes of action, damages, penalties, costs, expenses, attorneys' fees, liabilities, and indemnities of any nature whatsoever, whether known or unknown, which as of the date of this Agreement the parties had, now have, or claim to have. Excepted from this release are only (i) this Agreement and any right or obligations arising under it, and (ii) any rights to indemnification Executive may have on account of his service as an officer or director of the Company or its predecessor. Parent hereby ratifies and approves all actions taken by Executive while employed by Company or its predecessor. POLAR EXPRESS CORPORATION By: /s/ Larry L. Asche, President ----------------------------------- 7 8 AASCHE TRANSPORTATION SERVICES, INC. By: /s/ Larry L. Asche, Chairman ---------------------------------- /s/ Trey Trumbo ----------------------------------- TREY TRUMBO 8 9 EXHIBIT A PURCHASE FORM To: AASCHE TRANSPORTATION SERVICES, INC. 10214 N. Mt. Vernon Rd. Shannon, IL 61078 The undersigned hereby irrevocably subscribes for __________ shares of Common Stock of Aasche Transportation Services, Inc. pursuant to and in accordance with the terms and conditions of that certain Amended Employment and Stock Option Agreement dated as of July 22, 1996, and hereby makes payment of _____________ Dollars ($________) therefor and requests that a certificate for such shares be issued in the name of the undersigned and delivered to the undersigned at the address listed below. Address: ____________________________________ ____________________________________ ____________________________________ Dated: ______________, 1996. 9 EX-99.2 5 SEPARATION AGREEMENT 1 Exhibit 99.2 SEPARATION AGREEMENT THIS SEPARATION AGREEMENT is entered into this 26th day of July, 1996, by and between Orin S. Neiman (hereinafter referred to as "Neiman"), Polar Express Corporation, a Delaware corporation (hereinafter referred to as "Company") and Aasche Transportation Services, Inc., a Delaware Corporation (hereinafter referred to "Parent") ("Parent" and "Company" hereinafter collectively referred to as "Aasche.") WHEREAS, Company and Neiman are parties to a Consulting Agreement dated December 21, 1995, which was amended on June 14, 1996; and WHEREAS, the parties wish to terminate their Agreement. NOW, THEREFORE, in consideration of the foregoing recitals and the mutual undertakings set forth set forth below, Company, Parent and Neiman agree as follows: 1. Payment. Upon the execution of this Agreement, Company agrees to pay Neiman the sum of $182,000.00. 2. Pinnacle Membership. Company and Neiman acknowledge that the Company owns a membership in the Pinnacle Country Club. Company agrees to transfer such membership to an entity chosen by Neiman at no cost to Company. 3. Computer. The parties agree that Neiman has in his possession a lap top computer and software which is at Neiman's home. Some of the hardware and software on such system was purchased by the Company; however, it will be Neiman's sole property. 4. Stock Options. Parent hereby grants to Neiman the right and option to purchase 50,000 shares of common stock on the terms and conditions set forth in this paragraph. Page 1 of 5 2 a. The Shares subject to this Option shall become exercisable in whole on July 26, 1996, and the deadline for exercising the Option shall be March 31, 1998. b. Neiman shall exercise the Option by delivery to Parent of a duly executed copy of the purchase form attached hereto as Exhibit "A". The Option price (as hereinafter defined) shall be paid by full payment in cash. c. The Option price shall be the closing price of the common stock on the date this Agreement is executed, subject to adjustment provisions described below, provided; however, that in case Parent should at any time subdivide the outstanding shares of common stock or shall issue a stock dividend on its outstanding common stock, the Option price in such dividend should be proportionately decreased and in case Parent shall at any time combine the outstanding shares of common stock, the Option price in effect immediately prior to such combination shall be proportionately increased effective at the close of business on the date of such subdivision, dividend, or combination, as the case may be. Notwithstanding the foregoing, in the event the closing price on any of December 21, 1996, or December 21, 1997, (the "Relevant Date"), of the Parent's Common Stock on the Nasdaq Stock Market shall be less than the Option Price, the Option Price for the Shares underlying the unexercised options, shall be adjusted to the closing price of the Parent's Common Stock on such Relevant Date. d. The number of Shares shall be 50,000; provided, however, that in case the Parent should at any time subdivide the outstanding shares of Common Stock, or shall issue a stock dividend on its outstanding Common Stock, the number of Shares subject to the Option immediately prior to such subdivision or the issuance of such dividend shall be proportionately Page 2 of 5 3 increased, and in case the Parent shall at any time combine the outstanding shares of Common Stock, the number of Shares subject to the Option immediately prior to such combination shall be proportionately decreased, effective at the close of business on the date of such subdivision, dividend, or combination, as the case may be. e. Within thirty business days after the exercise of the Option, the Parent shall cause to be issued in the name of and delivered to Neiman a certificate or certificates for the Shares and Neiman shall deliver payment of the Option Price in the form described in (b) above. The Parent covenants that (A) all Shares issued and delivered upon the due exercise of the Option by Neiman shall, upon such issuance and delivery, be fully paid and nonassessable, and (B) the Parent shall agree at all times to reserve and hold available a sufficient number of shares of its authorized but unissued Common Stock to provide for delivery of the Shares upon the exercise of the Option. f. Parent agrees that such shares shall be registered and fully transferable on the public markets by December 15, 1996, and Parent shall pay all costs and expenses of such registration. g. Parent and Neiman agree that the options granted herein do not have a readily ascertainable fair market value at the time they were granted as defined by Section 83 of the Internal Revenue Code. Although both parties agree to act consistently with such representation, neither party shall be liable to the other in the event it is determined such options did have a readily ascertainable fair market value at the time they were granted. Page 3 0f 5 4 5. Release. Neiman and Aasche hereby generally release and forever discharge each other from any claims, demands, obligations, losses, causes of action, damages, penalties, costs, expenses, attorneys' fees, liabilities, and indemnities of any nature whatsoever, whether known or unknown, which as of the date of this Agreement the parties had, now have, or claim to have. Excepted from this release are only (i) this Agreement and any right or obligations arising under it, and (ii) any rights to indemnification Neiman may have on account of his service as an officer or director of the Company or its predecessor. 6. Consulting Agreement. All provisions of the Consulting Agreement and the Amendment thereto are null and void. 7. Entire Agreement. This Agreement contains the entire agreement of the parties relating to the subject matter hereof. The Agreement may not be modified orally but only by an agreement in writing signed by both parties. 8. Arbitration. Any controversy or claim arising out of, or relating to this Agreement, or its breach, shall be submitted to arbitration in the State of Arkansas in accordance with the then governing rules of the American Arbitration Association. Judgment upon the award rendered may be entered and enforced in any court of competent jurisdiction with in the State of Arkansas. 9. Attorneys' Fees and Related Costs. If any suit or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys' fees and other costs Page 4 of 5 5 incurred in such action or proceeding, in addition to any other relief to which he or it may be entitled. 10. Governing Law. This Agreement shall be interpreted and enforced under the laws of the State of Arkansas. /s/ Orin S. Neiman ----------------------------------------- ORIN S. NEIMAN POLAR EXPRESS CORPORATION By: /s/ Larry L. Asche ----------------------------------------- Larry L. Asche, President AASCHE TRANSPORTATION SERVICES, INC. By: /s/ Larry L. Asche ----------------------------------------- Larry L. Asche, Chairman Page 5 of 5 6 EXHIBIT A PURCHASE FORM TO: AASCHE TRANSPORTATION SERVICES, INC. 10214 N. Mt. Vernon Rd. Shannon, Illinois 61078 The undersigned hereby irrevocably subscribes for __________ shares of Common Stock of Aasche Transportation Services, Inc. pursuant to and in accordance with the terms and conditions of that certain Separate Agreement dated as of July 26, 1996, and hereby makes payment of ___________ Dollars ($____________) therefor and requests that a certificate for such shares be issued in the name of the undersigned and delivered to the undersigned at the address listed below. Address: ____________________________________ ____________________________________ ____________________________________ Dated: ____________, 1996. -----END PRIVACY-ENHANCED MESSAGE-----