-----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, WxHBgl93w6WEbUMLGfe1c/Y6OIjpS1aHbK7ntwZDSlAe5lauAKsE8QhWR0WWgY51 0J8he7je19FGM2LzS5L7/A== 0000950137-99-002950.txt : 19990813 0000950137-99-002950.hdr.sgml : 19990813 ACCESSION NUMBER: 0000950137-99-002950 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990812 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ASCHE 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-3 SEC ACT: SEC FILE NUMBER: 333-85021 FILM NUMBER: 99685293 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 FORMER COMPANY: FORMER CONFORMED NAME: AASCHE TRANSPORTATION SERVICES INC DATE OF NAME CHANGE: 19940802 S-3 1 FORM S-3 1 As filed with the Securities and Exchange Commission on August 12, 1999 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------- FORM S-3 REGISTRATION STATEMENT Under The Securities Act of 1933 ------------------------ ASCHE TRANSPORTATION SERVICES, INC. (Exact Name of Registrant as Specified in its Charter)
Delaware 4213 36-3964954 (State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer Incorporation or Organization) Classification Code Number) Identification No.)
10214 N. Mt. Vernon Road Shannon, Illinois 61078 (815) 864-2421 (Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices) Larry L. Asche 10214 N. Mt. Vernon Road Shannon, Illinois 61078 (815) 864-2421 (Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service) Copy to: Joel R. Schaider Sachnoff & Weaver, Ltd. 30 South Wacker Drive, 29th Floor Chicago, Illinois 60606 Telephone: (312) 207-1000 ------------------------ Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, check the following box: [ ] If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: X If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: [ ] If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration number of the earlier effective registration statement for the same offering: [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box: [ ]
CALCULATION OF REGISTRATION FEE =================================================================================================================================== Proposed Maximum Proposed Maximum Amount of Title of Each Class of Amount to be Offering Price Per Aggregate Offering Registration Fee Securities to be Registered Registered Share(1) Price - ------------------------------------------------ -------------------- --------------------- ---------------------- ----------------- Common Stock, par value $.0001 per share 857,990 shares $4.125 $ 3,539,208.75 $983.90 - ------------------------------------------------ ----------------------------------------- ---------------------- ------------------
(1) Calculated in accordance with Rule 457(c) based upon the average of the high and low sales prices of the Common Stock on August 9, 1999 which was $4.125. The Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine. ================================================================================ 2 - -------------------------------------------------------------------------------- Information contained herein is subject to completion or amendment. A registration statement relating to these securities has been filed with the Securities and Exchange Commission. These securities may not be sold nor may offers to buy be accepted prior to the time the registration statement becomes effective. This prospectus shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any State in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such State. - -------------------------------------------------------------------------------- SUBJECT TO COMPLETION, DATED AUGUST 12, 1999 857,990 SHARES ASCHE TRANSPORTATION SERVICES, INC. COMMON STOCK This prospectus covers 857,990 shares of the common stock of Asche Transportation Services, Inc., a Delaware corporation. The shares are being offered by James A. Jalovec, Eugene E. Cook Revocable Trust, Thomas Fassbinder, Brian T. Joenk and Jacqueline L. Minzes, as joint tenants, Dennis Scheumann, Richard Stagl, and James D. Webb and Sue R. Webb, as joint tenants. We will not receive any of the proceeds from the sale of the shares. We have not made any underwriting arrangements with respect to the shares. Our common stock is quoted on the Nasdaq National Market under the symbol "ASHE." On August 9, 1999, the last sale price reported was $4.125. ----------- THIS INVESTMENT INVOLVES RISK. SEE "RISK FACTORS" BEGINNING ON PAGE 5. ----------- Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense. ----------- The date of this Prospectus is August 12, 1999. 3 TABLE OF CONTENTS Asche Transportation Services, Inc........................................................................3 Risk Factors..............................................................................................5 Where to Find More Information............................................................................6 Incorporation of Certain Documents by Reference...........................................................7 Use of Proceeds...........................................................................................7 Selling Stockholders......................................................................................7 Plan of Distribution......................................................................................8 Experts...................................................................................................9 Legal Matters.............................................................................................9
2 4 ASCHE TRANSPORTATION SERVICES, INC. We are a diversified transportation services company. We operate primarily in two segments of the transportation services industry: - the temperature-controlled segment - the municipal solid waste segment TEMPERATURE-CONTROLLED SEGMENT Two of our subsidiaries, Asche Transfer, Inc. and AG Carriers, Inc. operate in the temperature-controlled segment of the transportation services industry. We deliver a variety of foods and other products for various Fortune 500 companies that require temperature-controlled service and "just-in-time" delivery. "Just-in-time" delivery means that delivery times must be precise and delivery must be dependable so our customers can control their inventory levels and limit handling. We offer premium-quality services to high-volume selective customers with significant temperature-controlled delivery needs. We believe that these customers provide us with more predictable, and, in some respects, less price-sensitive business. Their business is less price-sensitive because we believe that our customers choose their carrier based primarily on service, rather than price. We are currently a core carriers for Coca-Cola, Hershey, Tropicana Foods, Americold, S.C. Johnson Wax, Schreiber Foods, Abbott Laboratories, Baxter International and Kraft Foods. "Core carrier" means a relationship with a customer that is dedicated to transporting a significant amount of the customer's goods. We target the Midwest, Southeast, Northeast and South Central United States as our principal service areas because we have had success in developing significant customers in these markets. In particular, the Southeast, Northeast and South Central regions provide us with additional delivery opportunities when our trucks return to the Midwest. We purchase or lease high-quality, late-model tractors and temperature-controlled trailers manufactured to our specifications. Asche Transfer, Inc. and AG Carriers, Inc. also contract with owner-operators to provide additional tractors and trailers. We have equipped all of the tractors in our temperature-controlled segment with a two-way, satellite-based tracking and communication system, and we have a fully integrated management system. Our dispatchers are able to monitor the location and delivery schedules of all shipments and equipment, maintain constant communications with drivers, coordinate routes and maximize utilization of drivers and equipment with our technological systems. We operate from five terminals located in Shannon, Illinois; Conley, Georgia; Apopka, Florida; Tavares, Florida; and Tontitown, Arkansas. MUNICIPAL SOLID WASTE SEGMENT Our subsidiary, Specialty Transportation Services, Inc., carries municipal solid waste and other special waste. We are the only national and the largest for-hire carrier of municipal solid waste in transfer vehicles. In the past ten years, large waste services companies have reduced 3 5 and eliminated their "non-collection" trucking operations, creating a market for for-hire carriers of municipal solid waste to landfill sites. Waste services companies typically unload the waste they have collected from residential and commercial sites at transfer stations, and for-hire carriers such as Specialty Transportation Services, Inc. transport the waste from these transfer stations to landfill sites. We have long term contracts ranging from five to twenty years with municipalities and large national waste services companies, including Waste Management, Inc., Republic Industries, Inc., Allied Waste Services, Inc. and Browning-Ferris Industries, Inc. We are expanding our municipal solid waste segment by continuing to build strong, long-term relationships with major customers within the municipal solid waste market. We believe that our growth will continue by: - Increasing our marketing efforts and making more aggressive bids, in particular to the large waste services companies; - Seeking suitable acquisitions, primarily of smaller and regional independent companies, to allow us greater access to new major customers in additional geographic markets; - Expanding into additional regions by establishing new terminals in areas of high population; and - Leveraging our transportation capabilities to add new outsourcing opportunities for other types of solid waste and recyclables. We market primarily to large national waste services companies that outsource the transportation of municipal solid waste from transfer stations to landfill sites. We currently have contracts in key markets such as New York, New York; Los Angeles, California; Dallas, Texas; Phoenix, Arizona; Baltimore, Maryland; St. Louis, Missouri; Portland, Oregon; Birmingham, Alabama; and Nashville, Tennessee. We believe we have positioned ourselves to attract new business in both new and existing markets. We purchase or lease tractors and trailers suitable for the transportation of municipal solid waste, and we also contract with owner-operators to provide additional tractors and trailers. After two to three years, we convert most of the tractors in our temperature-controlled segment for use in our municipal solid waste segment for their remaining useful life. These conversions allow us to lower the overall cost of equipment and provide the municipal solid waste segment with an additional source of equipment during periods of growth. We operate in 20 terminals located in the following cities: Irondale, Alabama; Chandler, Arizona; Lancaster, California; Moreno Valley, California; Granite City, Illinois; Indianapolis, Indiana; Valparaiso, Indiana; Lexington, Kentucky; Nicholasville, Kentucky; Baltimore, Maryland; Freeport, New York; Greensboro, North Carolina; Arlington, Oregon; Portland, Oregon; Bigler, Pennsylvania; Duncan, South Carolina; Camden, Tennessee; Union City, Tennessee; Irving, Texas and Federal Way, Washington. Our executive offices are located at 10214 N. Mt. Vernon Road, Shannon, Illinois 61078. Our telephone number is (815) 864-2421. 4 6 RISK FACTORS Before you invest in our common stock, you should be aware that there are various risks, including those described below. You should carefully consider these risk factors, together with all of the other information included in this prospectus, before you decide whether to purchase shares of our common stock. Some of the information in this prospectus contains forward-looking statements that involve substantial risks and uncertainties. You can identify such statements by forward-looking words such as "may," "will," "expect," "anticipate," "believe," "estimate," and "continue" or similar words. You should read statements that contain these words carefully because they: (1) discuss our future expectations, (2) contain projections of our future results of operations or of our financial condition or (3) state other "forward-looking" information. We believe it is important to communicate our expectations to our investors. However, there may be events in the future which we are not able to accurately predict or over which we have no control. The risk factors listed in this section, as well as any cautionary language in this prospectus, provide examples of risks, uncertainties and events that may cause our actual results to differ materially from the expectations we describe in our forward-looking statements. Before you invest in our common stock, you should be aware that the occurrence of the events described in these risk factors and documents incorporated by reference could have a material adverse effect on our business, operating results and financial condition. AVAILABILITY OF DRIVERS Competition for drivers is intense within the trucking industry. We occasionally experience difficulty attracting and retaining qualified drivers and owner-operators in our temperature-controlled segment. When this happens, our trucks are temporarily idle, and we must reduce the level of service to our existing customers. In addition, the shortage of qualified drivers reduces our ability to obtain new business. We incur significant expenses in recruiting, marketing and training new employees, and from time to time, we must significantly increase compensation to retain our drivers and owner-operators. Difficulty in attracting and retaining qualified drivers and owner-operators in our temperature-controlled segment may adversely impact our business, financial condition and results of operations. INCREASES IN FUEL COSTS We depend on diesel fuel to run our trucks. If the cost of fuel increases, our results of operations will be affected even though we are able to charge our customers for a portion of the fuel increase. We are only able to charge our customers for increased fuel costs above a certain price level, so we must bear any increase in fuel costs below that level. CAPITAL REQUIREMENTS Our industry is capital intensive. We rely upon loans and leases to purchase new equipment, and we have granted our lenders a lien on substantially all of our assets. If we are unable to borrow sufficient funds at acceptable interest rates or raise additional equity on acceptable terms, or if there is a significant increase in interest rates, we may have to limit our growth and operate our tractors and trailers for longer periods. If we have to limit our growth or operate our fleet for longer periods, our business, financial condition and results of operations may be adversely affected. ADVERSE IMPACT OF YEAR 2000 COMPUTER SYSTEMS COMPLIANCE Many older computer software programs refer to years in terms of final two digits only. Such programs may incorrectly interpret the year 2000 to mean the year 1900. If not corrected, such programs could cause date-related transaction failures. Although we believe we have corrected substantially all of the systems that we believe are critical to our business, the year 2000 problem may, however, adversely impact our business, financial condition and results of operations by affecting the business and operations of our suppliers and customers. For example, 5 7 if the year 2000 problem affects our customers, we may lose revenues because our customers may not be able to ship freight or pay us for our services. We cannot predict whether our suppliers and customers will suffer any adverse impact because of the year 2000 problem or the effect they may have on our business. WHERE TO FIND MORE INFORMATION We file annual, quarterly and special reports, proxy statements and other information with the SEC. You may read and copy any document we file at the following locations: - - At the Public Reference Room of the SEC, Room 1024 - Judiciary Plaza, 450 Fifth Street, N.W., Washington, DC 20549; - - At the public reference facilities at the SEC's regional offices located at Seven World Trade Center, 13th Floor, New York, New York 10048 or Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661; - - By writing to the SEC, Public Reference Section, Judiciary Plaza, 450 Fifth Street, N.W., Washington, DC 20549; - - At the offices of the National Association of Securities Dealers, Inc., Reports Section, 1735 K Street, N.W., Washington, DC 20006; or - - From the Internet site maintained by the SEC at http://www.sec.gov. which contains reports, proxy and information statements and other information regarding issuers that file electronically with the SEC. Some locations may charge prescribed or modest fees for copies. We have filed with the SEC a Registration Statement on Form S-3 under the Securities Act of 1933 covering the shares of common stock offered hereby. As permitted by the SEC, this prospectus, which constitutes a part of the Registration Statement, does not contain all the information included in the Registration Statement. Such additional information may be obtained from the locations described above. Statements contained in this prospectus as to the contents of any contract or other document are not necessarily complete. You should refer to the contract or other document for all the details. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The Securities and Exchange Commission allows us to "incorporate by reference" the information we file with them, which means that we can disclose important information to you by referring to these documents. The information incorporated by reference is considered to be part of this prospectus, and information that we file with the Commission later will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities and Exchange Act of 1934 until the selling stockholders sell all of the common stock. This prospectus is part of a Registration Statement that we filed with the SEC. 6 8 1. our Annual Report on Form 10-K/A for the fiscal year ended December 31, 1998, filed on August 10, 1999; 2. our quarterly reports on Form 10-Q for the quarters ended March 31, 1999 and June 30, 1999. 3. our Current Reports on Form 8-K filed on July 22, 1999 and August 11, 1999; 4. the description of our common stock contained in our Registration Statement on Form 8-A, declared effective on July 26, 1994; and 5. our Proxy Statement on Form 14A, filed on April 16, 1999. You may request a copy of these filings, at no cost, by writing or telephoning us at the following address: Asche Transportation Services, Inc., 10214 N. Mt. Vernon Road, Shannon, Illinois 61078, Attention: Leon M. Monachos, Chief Financial Officer, Telephone: (815) 864-2421. USE OF PROCEEDS We will not receive any of the proceeds from the sale of any of the shares by James A. Jalovec, Eugene E. Cook Revocable Trust, Thomas Fassbinder, Brian T. Joenk and Jacqueline L. Minzes, as joint tenants, Dennis Scheumann, Richard Stagl, and James D. Webb and Sue R. Webb, as joint tenants. SELLING STOCKHOLDERS In July 1999, we entered into a Securities Purchase Agreement with James A. Jalovec. Pursuant to the terms of the Securities Purchase Agreement, we issued 750,000 shares of our Common Stock to Mr. Jalovec for $3,000,000. In July 1999, we entered into an exchange agreement with Eugene E. Cook Revocable Trust, Thomas Fassbinder, Brian T. Joenk and Jacqueline L. Minzes, as joint tenants, Dennis Scheumann, Richard Stagl and James D. Webb and Sue R. Webb, as joint tenants. We exchanged a total of 88,894 shares of our Common Stock for a total of $400,000 of subordinated debt that we owed to these individuals. In addition, we exchanged a total of 19,096 shares of our Common Stock for $85,917 of accrued interest that we owed to these individuals. 7 9 The following table sets forth for each selling stockholder the number of Shares each selling stockholder beneficially owned prior to this offering, and the maximum number of Shares to be registered.
Number of Shares Percentage of Total Beneficially Owned Prior Maximum Number of Ownership after Selling Stockholders to Offering Shares to be Registered Completion of Offering - ----------------------------------------------------------------------------------------------------------------------- James A. Jalovec 741,250(1) 750,000 24.2207% Eugene E. Cook Revocable Trust -- 13,499 * Thomas Fassbinder -- 26,997 * Brian T. Joenk and Jacqueline L. Minzes, as joint tenants -- 26,997 * Dennis Scheumann -- 13,499 * Richard Stagl -- 13,499 * James D. Webb and Sue R Webb, as joint tenants 1,000 13,499 *
- ---------------------------- (1) Includes 200,000 options and warrants. *Less than 1% PLAN OF DISTRIBUTION We will not receive any proceeds from the sale of the shares. The selling stockholders may sell the shares from time to time. These sales may be made on one or more exchanges or in the over-the-counter market, or otherwise. The shares may be sold by any one or more of the following: o a block trade in which the broker or dealer so engaged will attempt to sell the shares as agent but may purchase and resell a portion of the block as principal to facilitate the transaction; o purchases by a broker or dealer as principal and resale by such broker or dealer for its account pursuant to this prospectus; o an exchange distribution in accordance with the rules of such exchange; or o ordinary brokerage transactions and transactions in which the broker solicits purchasers. In making these sales, the selling stockholders may engage brokers or dealers to arrange for other brokers or dealers to purchase the shares. Brokers and dealers will receive commissions or discounts from the selling stockholders in amounts to be negotiated prior to the sale. The selling stockholders and any brokers or dealers participating in the distribution of the shares may be deemed to be "underwriters" within the meaning of the Securities Act of 1933. Accordingly, any commissions received by these broker-dealers and any profits realized on the resale of shares by them may be deemed to be underwriting discounts and commissions under the Securities Act of 1933. The selling stockholders may agree to indemnify these broker-dealers with respect to the shares offered hereby against certain liabilities, including certain liabilities under the Securities Act of 1933. In addition, we have agreed to indemnify the selling stockholders with respect to the shares offered hereby against certain liabilities, including certain liabilities under the 8 10 Securities Act of 1933. If such indemnity is unavailable, we will contribute toward amounts required to be paid in respect of such liabilities. In addition, any securities covered by this prospectus which qualify for sale pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to this prospectus. We will pay the registration expenses relating to the offering and sale of the shares by the selling stockholders to the public. These expenses (estimated to be $23,143), include legal and accounting expenses, filing fees payable to the SEC, applicable state "blue sky" filing fees and printing expenses. We, however, will not pay for any expenses, commissions or discounts of underwriters, dealers or agents for the selling stockholders. Any underwriters, brokers, dealers and agents who participate in any such sale may also be customers of, engage in transactions with or perform services for Asche Transportation Services, Inc. or the selling stockholders. Our common stock is currently traded on the Nasdaq National Market. The public offering price for any shares that are sold will be determined by the price indicated on such system at the time such sale occurs, or at such price as shall be determined through private negotiations between the buyer and the selling stockholders, or their agents. EXPERTS The consolidated financial statements of Asche Transportation Services, Inc. appearing in Asche Transportation Services, Inc.'s Annual Report (Form 10-K/A) for the year ended December 31, 1998, have been audited by Ernst & Young, LLP, independent auditors, as set forth in their report thereon included therein and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing. LEGAL MATTERS The validity of the shares has been passed upon for us by Sachnoff & Weaver, Ltd., Chicago, Illinois. 9 11 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The following are the estimated expenses in connection with the distribution of the securities being registered: SEC registration fee.............................. $ 983 Nasdaq National Market Listing fee................ 17,160 Accounting fees and expenses...................... 2,500 Attorneys' fees and expenses...................... 1,500 Miscellaneous..................................... 1,000 ------- Total.................................... $23,143
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS Article 9 of the Registrant's Certificate of Incorporation ("Article 9") is consistent with Section 102(b)(7) of the Delaware General Corporation Law, which generally permits a company to include a provision limiting the personal liability of a director in the company's certificate of incorporation. With limitations, Article 9 eliminates the personal liability of the Registrant's directors to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director. However, Article 9 does not eliminate director liability: (1) for breaches of the duty of loyalty to the Registrant and its stockholders; (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (3) for transactions from which a director derives improper personal benefit; or (4) under Section 174 of the Delaware General Corporation Law ("Section 174"). Section 174 makes directors personally liable for unlawful dividends and stock repurchases or redemptions and expressly sets forth a negligence standard with respect to such liability. While Article 9 protects the directors from awards for monetary damages for breaches of their duty of care, it does not eliminate their duty of care. The limitations in Article 9 have no effect on claims arising under the federal securities laws. With certain limitations, Article 6 of the Registrant's By-laws ("Article 6") provides for indemnification of any of the Registrant's past, present and future officers and directors against liabilities and reasonable expenses incurred in any criminal or civil action by reason of such person's being or having been an officer or director of the Registrant or of any other corporation which such person serves as such at the request of the Registrant. Indemnification under Article 6 is limited to officers and directors who have acted in good faith and in a manner they reasonably believed to be in the best interests of the Registrant. Any questions regarding whether the officer or director has met the required standards of conduct are to be answered by (1) the majority of disinterested directors, (2) a written opinion of a reputable disinterested legal counsel selected by the Board, or (3) the stockholders. Indemnification rights under Article 6 are non-exclusive. In the event of an officer's or director's death, such person's indemnification rights shall extend to his or her heirs and legal representatives. Rights under Article 6 are severable, and if any part of that section is determined to be invalid for any reason, all other parts remain in effect. 10 12 Under Section 145 of the Delaware General Corporation Law, directors and officers, as well as other employees and individuals, may be indemnified against expenses (including attorneys' fees), judgments, fines, amounts paid in settlement in connection with specified actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation - a "derivative action") if they acted in good faith and in a manner they reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to criminal actions or proceedings, had no reasonable cause to believe their conduct was unlawful. A similar standard of care is applicable in the case of derivative actions, except that indemnification only extends to expenses (including attorneys' fees) incurred in connection with the defense or settlement of such an action, and the Delaware General Corporation Law requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. ITEM 16. EXHIBITS A list of the exhibits included as part of this Registration Statement is set forth in the Exhibit Index which immediately precedes such exhibits and which is incorporated herein by reference. ITEM 17. UNDERTAKINGS (a) The undersigned Registrant hereby undertakes: 1. To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement; (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement (notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement); and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement. provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) or the Securities and Exchange Act of 1934 that are incorporated by reference in the Registration Statement. 11 13 2. That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. 12 14 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Chicago and State of Illinois on the 12th of August 1999. ASCHE TRANSPORTATION SERVICES, INC. By: /s/ Leon M. Monachos ------------------------------ Leon M. Monachos Chief Financial Officer The undersigned officers and directors of Asche Transportation Services, Inc. hereby severally constitute Leon M. Monachos our true and lawful attorney and agent, with full power to him to sign for us and our names in the capacities indicated below, the registration statement on Form S-3 filed herewith and any and all pre-effective and post-effective amendments to said registration statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable Asche Transportation Services, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorney to said registration statement and any and all amendment hereto. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Larry L. Asche - ---------------------------------------- Larry L. Asche Chief Executive Officer and Chairman August 12, 1999 of the Board of Directors (Principal Executive Officer) /s/ Leon M. Monachos - ---------------------------------------- Leon M. Monachos Chief Financial Officer (Principal August 12, 1999 Financial Officer and Accounting Officer) /s/ Kevin M. Clark - ---------------------------------------- Kevin M. Clark President, Director August 12, 1999 /s/ Gary I. Goldberg - ---------------------------------------- Gary I. Goldberg Vice President, Director August 12, 1999 /s/ Diane L. Asche - ---------------------------------------- Diane L. Asche Vice President, Secretary, Director August 12, 1999 /s/ Richard S. Baugh - ---------------------------------------- Richard S. Baugh Director August 12, 1999 /s/ Dennis D. Wilson - ---------------------------------------- Dennis D. Wilson Director August 12, 1999 /s/ Michael Todd Recob - ---------------------------------------- Michael Todd Recob Director August 12, 1999 /s/ Karl R. Sattler - ---------------------------------------- Karl R. Sattler Director August 12, 1999
13 15 EXHIBIT INDEX Exhibit Number Description of Exhibit - -------------- ---------------------- 4.1 Specimen Common Stock Certificate (incorporated by reference from Exhibit 4.1 to our registration statement on Form SB-2 effective September 23, 1994). 5 Opinion of Sachnoff & Weaver, Ltd. 23.1 Consent of Independent Auditors 23.2 Consent of Sachnoff & Weaver, Ltd. (included in Exhibit 5) 24.1 Power of Attorney (contained on signature page) 14 EX-5 2 OPINION OF SACHNOFF & WEAVER, LTD. 1 Exhibit 5 [SACHNOFF & WEAVER, LTD. LETTERHEAD] August 12, 1999 Asche Transportation Services, Inc. 10214 N. Mt. Vernon Rd. Shannon, Illinois 61078 Re: Common Stock $.0001 par value per share Gentlemen: We have acted as counsel to Asche Transportation Services, Inc., a Delaware corporation (the "Company"), in connection with the Registration Statement on Form S-3, as amended (the "Registration Statement"), filed by the Company under the Securities Act of 1933, as amended, with the Securities and Exchange Commission (the "Commission"), relating to the registration for resale of up to 857,990 shares (the "Shares") of the Company's Common Stock, par value $.0001 per share. We have examined the Registration Statement filed with the Commission and we have reviewed such other documents and have made such further investigations as we have deemed necessary to enable us to express the opinion hereinafter set forth. We hereby advise you that in our opinion the Shares have been duly authorized by the Company and, upon payment and delivery will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the caption "Legal Matters" in the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933 or the rules and regulations of the Securities and Exchange Commission. SACHNOFF & WEAVER, LTD. s/s Sachnoff & Weaver, Ltd. 15 EX-23.1 3 CONSENT OF INDEPENDENT AUDITORS 1 Consent of Independent Auditors We consent to the reference to our firm under the caption "Experts" in the Registration Statement on Form S-3 and the related Prospectus of Asche Transportation Services, Inc. for the registration of 857,990 shares of its common stock and to the incorporation by reference therein of our report dated April 15, 1999 (except for Notes 4, 5 and 16, as to which the date is August 10, 1999) with respect to the consolidated financial statements of Asche Transportation Services, Inc., included in its annual report (Form 10-K/A) for the year ended December 31, 1998, filed with the Securities and Exchange Commission. /s/ Ernst & Young, LLP Chicago, Illinois August 11, 1999 16 -----END PRIVACY-ENHANCED MESSAGE-----