SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT is made this 7th day of September 1998, by
and between Northern Dancer Corporation, a Colorado corporation ("NDC"), and
U.S. Trucking, Inc. , a Nevada corporation ("U.S. Trucking").
WHEREAS, NDC desires to acquire all of the issued and outstanding shares
of common stock of U.S. Trucking in exchange for an aggregate of 15,877,300
(post-split) authorized but unissued restricted shares of the common stock, no
par value, of NDC (the "Common Stock") the "Exchange Offer"); and
WHEREAS, U.S. Trucking desires to assist NDC in a business combination
which will result, if the U.S. Trucking shareholders desire to participate, in
the shareholders of U.S. Trucking owning approximately 96.27% of the then
issued and outstanding shares of NDC's Common Stock, and NDC holding 100% of
the issued and outstanding shares of U.S. Trucking's common stock; and
WHEREAS, the voluntary share exchange contemplated hereby will result in
the U.S. Trucking shareholders tendering all of the outstanding common stock
of U.S. Trucking to NDC in exchange solely for the Common Stock and no other
consideration, which the parties hereto intend to treat as a reorganization
under I.R.C. Section 368(a)(1)(B).
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
representations contained herein, THE PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE 1
EXCHANGE OF SECURITIES
1.1 Issuance of Shares. Subject to all of the terms and conditions of
this Agreement, NDC agrees to offer one share (post-split) of Common Stock for
each share of U.S. Trucking common stock issued and outstanding, or a total of
15,877,300 shares of NDC's Common Stock. The Common Stock will be issued
directly to the shareholders of U.S. Trucking which accept the Exchange Offer.
Schedule 1, which is attached hereto and incorporated herein by reference, is
a complete list of the shareholders of U.S. Trucking which sets forth the
number of shares each person owns in U.S. Trucking and the number of shares
they will be offered in NDC. NDC has been advised that U.S. Trucking has
granted an aggregate of 1,500,000 options under its Executive Stock Option
Plan. NDC agrees to issue one share of NDC stock upon exercise of each such
option and, as a condition to the transactions contemplated hereby, each
option holder under such plan shall agree to accept upon exercise of the
option the NDC shares in lieu of the U.S. Trucking shares to which he is
otherwise entitled.
1.2 Exemption from Registration. The parties hereto intend that the
Common Stock to be issued by NDC to U.S. Trucking shareholders shall be exempt
from the registration requirements of the Securities Act of 1933, as amended
(the "Act"), pursuant to Section 4(2) of the Act and Rule 506 of Regulation D
under such Act.
1.3 Investment Intent. Prior to the consummation of the Exchange Offer,
the shareholders of U.S. Trucking accepting the Exchange Offer shall execute
Letters of Acceptance and such other documents containing, among other things,
representations and warranties relating to investment intent and investor
status, restrictions on transferability and restrictive legends such that the
counsel for both NDC and U.S. Trucking shall be satisfied that the offer and
sale of NDC shares as contemplated by this Agreement shall be exempt from the
registration requirements of the Act and any applicable state blue sky laws.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF U.S. TRUCKING
Except as disclosed in Schedule 2 which is attached hereto and
incorporated herein by reference, U.S. Trucking hereby represents and warrants
to NDC that:
2.1 Organization. U.S. Trucking is a corporation duly organized,
validly existing, and in good standing under the laws of Nevada, has all
necessary corporate powers to own its properties and to carry on its business
as now owned and operated by it, and is duly qualified to do business and is
in good standing in each of the jurisdictions where its business requires
qualification.
2.2 Capital. The authorized capital stock of U.S. Trucking consists of
50,000,000 shares of Common Stock, of which 15,877,300 are currently issued
and outstanding , 1,500,000 options granted under an Executive Stock Option
Plan and 1,000,000 shares of preferred stock, none of which have been
designated or issued. All of the issued and outstanding shares of U.S.
Trucking common stock are duly authorized, validly issued, fully paid, and
nonassessable. There are no outstanding subscriptions, options, rights,
warrants, debentures, instruments, convertible securities, or other agreements
or commitments obligating U.S. Trucking to issue or to transfer from treasury
any additional shares of its capital stock of any class.
2.3 Subsidiaries. U.S. Trucking is a holding company which conducts its
operations through wholly owned subsidiaries. The two principal subsidiaries
of U.S. Trucking are Gulf Northern Transport, Inc., a Wisconsin corporation,
and Mencor, Inc., a South Carolina corporation. The other subsidiaries of U.S.
Trucking are not material to U.S. Tucking taken as a whole. Each of Gulf
Northern Transport, Inc. and Mencor, Inc. (collectively the "Subsidiaries" and
each a "Subsidiary") is duly organized and existing under the laws of the
state of its incorporation and has all necessary corporate powers to own its
properties and to carry on its business as now owned and operated by it, and
is duly qualified to do business and is in good standing in each of the
jurisdictions where its business requires qualification
2.4 Directors and Officers. Schedule 2 contains the names and titles of
all directors and officers of U.S. Trucking as of the date of this Agreement.
2.5 Financial Statements. U.S. Trucking has delivered to NDC its audited
consolidated balance sheet, consolidated statement of operations, consolidated
statement of stockholders' equity and consolidated statement of cash flows as
of and for the period ended December 31, 1997, and its unaudited balance sheet
and statement of operations for the six months ended June 30, 1998 (the
"Financial Statements"). The Financial Statements are complete and correct in
all material respects and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods indicated. The Financial Statements accurately set out and describe
the financial condition of U.S. Trucking on a consolidated basis as of June
30, 1998.
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2.6 Absence of Changes. Since June 30, 1998, except for changes in the
ordinary course of business which have not in the aggregate been materially
adverse, to the best of U.S. Trucking's knowledge, each of U.S. Trucking and
the Subsidiaries have conducted its business only in the ordinary course and
has not experienced or suffered any material adverse change in the condition
(financial or otherwise), results of operations, properties, business or
prospects of U.S. Trucking or its Subsidiaries taken as a whole or waived or
surrendered any claim or right of material value. U.S. Trucking has advised
NDC that it has executed letters of intent related to an acquisition since
June 30, 1998 and that it is pursuing several other acquisition candidates.
One or more of such transactions may close prior to the closing hereunder and
such transactions shall not in any way be prohibited by this Agreement or
constitute a breach of any representation made hereunder.
2.7 Absence of Undisclosed Liabilities. Neither U.S. Trucking, the
Subsidiaries nor any of their properties or assets are subject to any material
liabilities or obligations of any nature, whether absolute, accrued,
contingent or otherwise and whether due or to become due, that are not
reflected in the financial statements presented to NDC or have otherwise been
disclosed in writing to NDC.
2.8 Tax Returns. Within the times and in the manner prescribed by law,
U.S. Trucking and the Subsidiaries have filed all federal, state and local tax
returns required by law, or has filed extensions which have not yet expired,
and has paid all taxes, assessments and penalties due and payable, except for
amounts which are not material to U.S. Trucking and the Subsidiaries, taken as
a whole.
2.9 Investigation of Financial Condition. Without in any manner
reducing or otherwise mitigating the representations contained herein, NDC
and/or its attorneys shall have the opportunity to meet with accountants and
attorneys to discuss the financial condition of U.S. Trucking. U.S. Trucking
shall make available to NDC and/or its attorneys all books and records of U.S.
Trucking. U.S. Trucking may request that any person receiving information
with respect to it shall execute and deliver an appropriate confidentiality
agreement as a condition to such receipt.
2.10 Compliance with Laws. U.S. Trucking and the Subsidiaries have each
complied with, and are not in violation of, applicable federal, state or local
statutes, laws and regulations (including, without limitation, any applicable
building, zoning or other law, ordinance or regulation) affecting its
properties or the operation of its business, except for matters which would
not have a material affect on U.S. Trucking and the Subsidiaries or their
properties taken as a whole.
2.11 Litigation. Except as disclosed in writing to NDC, U.S. Trucking is
not a party to any suit, action, arbitration or legal, administrative or other
proceeding, or governmental investigation pending or, to the best knowledge of
U.S. Trucking, threatened against or affecting U.S. Trucking or its business,
assets or financial condition, except for matters which would not have a
material affect on U.S. Trucking or its properties. U.S. Trucking is not in
default with respect to any order, writ, injunction or decree of any federal,
state, local or foreign court, department, agency or instrumentality
applicable to it. U.S. Trucking is not engaged in any lawsuit to recover any
material amount of monies due to it.
2.12 Authority. U.S. Trucking has full corporate power and authority to
enter into this Agreement. The board of directors of U.S. Trucking has taken
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all action required to authorize the execution and delivery of this Agreement
by or on behalf of U.S. Trucking and the performance of the obligations of
U.S. Trucking under this Agreement. No other corporate proceedings on the
part of U.S. Trucking are necessary to authorize the execution and delivery of
this Agreement by U.S. Trucking in the performance of its obligations under
this Agreement. This Agreement is, when executed and delivered by U.S.
Trucking, and will be a valid and binding agreement of U.S. Trucking,
enforceable against U.S. Trucking in accordance with its terms, except as such
enforceability may be limited by general principles of equity, bankruptcy,
insolvency, moratorium and similar laws relating to creditors' rights
generally.
2.13 Ability to Carry Out Obligations. Neither the execution and
delivery of this Agreement, the performance by U.S. Trucking of its
obligations under this Agreement, nor the consummation of the transactions
contemplated under this Agreement will to the best of U.S. Trucking's
knowledge: (a) materially violate any provision of U.S. Trucking's articles
of incorporation or bylaws; (b) with or without the giving of notice or the
passage of time, or both, violate, or be in conflict with, or constitute a
material default under, or cause or permit the termination or the acceleration
of the maturity of, any debt, contract, agreement or obligation of U.S.
Trucking or either Subsidiary, or require the payment of any prepayment or
other penalties; (c) require notice to, or the consent of, any party to any
agreement or commitment, lease or license, to which U.S. Trucking is bound;
(d) result in the creation or imposition of any security interest, lien, or
other encumbrance upon any material property or assets of U.S. Trucking or
either Subsidiary; or (e) violate any statute or law or any judgment, decree,
order, regulation or rule of any court or governmental authority to which U.S.
Trucking or either Subsidiary is bound or subject.
2.14 Full Disclosure. None of the representations and warranties made by
U.S. Trucking herein, or in any schedule, exhibit or certificate furnished or
to be furnished in connection with this Agreement by U.S. Trucking, or on its
behalf, contains or will contain any untrue statement of material fact.
2.15 Assets. U.S. Trucking and the Subsidiaries each have good and
marketable title to all of its tangible properties and such tangible
properties are not subject to any material liens or encumbrances.
Notwithstanding the foregoing, U.S. Trucking and the Subsidiaries have
financed certain operating assets and incurred liens in connection therewith
as set forth in the U.S. Trucking financial statements. In addition, certain
assets have been acquired by U.S. Trucking and the Subsidiaries in certain
acquisitions where the title in U.S. Trucking has not, as of the date hereof,
been perfected.
2.16 Material Contracts and Obligations. Attached hereto on Schedule 2 is
a list of all agreements, contracts, indebtedness, liabilities and other
obligations to which U.S. Trucking is a party or by which it is bound that are
material to the conduct and operations of its business and properties, which
provide for payments to or by the Company in excess of $50,000; or which
involve transactions or proposed transactions between the Company and its
officers and directors. Excluded from such list are agreements relating to
the finance or lease-finance of tractors and/or trailers. Copies of such
agreements and contracts and documentation evidencing such liabilities and
other obligations have been made available for inspection by NDC and its
counsel. All of such agreements and contracts are valid, binding and in full
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force and effect in all material respects, assuming due execution by the other
parties to such agreements and contracts.
2.17 Consents and Approvals. No consent, approval or authorization of,
or declaration, filing or registration with, any governmental or regulatory
authority is required to be made or obtained by U.S. Trucking in connection
with: (a) the execution and delivery by U.S. Trucking of this Agreement; (b)
the performance by U.S. Trucking of its obligations under this Agreement; or
(c) the consummation by U.S. Trucking of the transactions contemplated under
this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF NDC
Except as disclosed in Schedule 3 which is attached hereto and
incorporated herein by reference, NDC represents and warrants to U.S. Trucking
that:
3.1 Organization. NDC is a corporation duly organized, valid existing,
and in good standing under the laws of Colorado, has all necessary corporate
powers to own properties and to carry on business, and it is not now
conducting any business, except to the extent to which the effecting of the
transaction contemplated by this Agreement constitutes doing business.
3.2 Capitalization. The authorized capital stock of NDC consists of
1,500,000,000 shares of no par value Common Stock of which 98,330,000 shares
of Common Stock are currently issued and outstanding. All of the issued and
outstanding shares of Common Stock are duly authorized, validly issued, fully
paid and nonassessable. There are no outstanding subscriptions, options,
rights, warrants, convertible securities, or other agreements or commitments
obligating NDC to issue or to transfer from treasury any additional shares of
its capital stock of any class. Prior to the Closing, NDC will complete a 1
for 160 reverse stock split and in connection therewith reduced the number of
shares of Common Stock that it is authorized to issue to 75,000,000 shares
without par value and the number of outstanding shares will be reduced to
approximately 614,700.
3.3 Subsidiaries. NDC does not presently have any subsidiaries or own
any interest in any other enterprise (whether or not such enterprise is a
corporation).
3.4 Directors and Officers. Schedule 3 contains the names and titles of
all directors and officers of NDC as of the date of this Agreement.
3.5 Financial Statements. NDC has delivered to U.S. Trucking its
audited balance sheet and statements of operations and cash flows as of and
for the period ended March 31, 1998, and its unaudited balance sheet and
statements of operations for the three months ended June 30, 1998 (the
"Financial Statements"). The Financial Statements are complete and correct
in all material respects and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods indicated. The Financial Statements accurately set out and describe
the financial condition and operating results of the Company as of the dates,
and for the periods, indicated therein. As of the Closing, NDC will have at
least $30,000 in cash after payment of all liabilities including the costs of
this transaction.
3.6 Absence of Changes. Since June 30, 1998, except for changes in the
ordinary course of business which have not in the aggregate been materially
adverse, to the best of NDC's knowledge, NDC has not experienced or suffered
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any material adverse change in its condition (financial or otherwise), results
of operations, properties, business or prospects or waived or surrendered any
claim or right of material value. NDC's business prior to the closing
hereunder shall consist solely of activities preparatory to the closing
hereunder.
3.7 Absence of Undisclosed Liabilities. To the best of NDC's knowledge,
neither NDC nor any of its properties or assets are subject to any liabilities
or obligations of any nature, whether absolute, accrued, contingent or
otherwise and whether due or to become due, that are not reflected in the
financial statements presented to U.S. Trucking.
3.8 Tax Returns. Within the times and in the manner prescribed by law,
NDC has filed all federal, state and local tax returns required by law and has
paid all taxes, assessments and penalties due and payable.
3.9 Investigation of Financial Condition. Without in any manner
reducing or otherwise mitigating the representations contained herein, U.S.
Trucking shall have the opportunity to meet with NDC's accountants and
attorneys to discuss the financial condition of NDC. NDC shall make available
to U.S. Trucking all books and records of NDC.
3.10 Compliance with Laws. To the best of NDC's knowledge, NDC has
complied with, and is not in violation of, applicable federal, state or local
statutes, laws and regulations (including, without limitation, any applicable
building, zoning, or other law, ordinance, or regulation) affecting its
properties or the operation of its business. Further, NDC has filed all
periodic reports required to be filed by it if it were a reporting company
with securities registered under the Securities Exchange Act of 1934, as
amended (the "1934 Act"). NDC does not represent that it has made all
disclosures required to made by such registered reporting companies,
nevertheless, NDC represents that the reports filed by NDC under the 1934 Act
are true, accurate and complete and do not omit to state a fact necessary to
be stated in order to make the statements made therein not misleading.
3.11 Litigation. NDC is not a party to any suit, action, arbitration, or
legal, administrative, or other proceeding, or governmental investigation
pending or, to the best knowledge of NDC, threatened against or affecting NDC
or its business, assets, or financial condition. NDC is not in default with
respect to any order, writ, injunction, or decree of any federal, state,
local, or foreign court, department agency, or instrumentality. NDC is not
engaged in any legal action to recover moneys due to it.
3.12 No Prior or Pending Investigation. NDC is not aware of any prior or
pending investigations or legal proceedings by the SEC, any state securities
regulatory agency, or any other governmental agency regarding NDC or any
officers or directors of NDC or any shareholders or controlling persons of
such shareholders.
3.13 Authority. NDC has full corporate power and authority to enter into
this Agreement and to consummate the transactions contemplated by this
Agreement. The Board of Directors of NDC has taken all action required to
authorize the execution and delivery of this Agreement by or on behalf of NDC,
the performance of the obligations of NDC under this Agreement and the
consummation by NDC of the transactions contemplated under this Agreement. No
other corporate proceedings on the part of NDC are necessary to authorize the
execution and delivery of this Agreement by NDC in the performance of its
obligations under this Agreement. This Agreement is, and when executed and
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delivered by NDC, will be a valid and binding agreement of NDC, enforceable
against NDC in accordance with its terms, except as such enforceability may be
limited by general principles of equity, bankruptcy, insolvency, moratorium
and similar laws relating to creditors rights generally. Conditioned only
upon the consummation of this transaction, NDC has assumed the obligation on
the part of U.S. Trucking to register the shares of certain U.S. Trucking
shareholders under the Securities Act within 180 days of the closing of a
private placement by U.S. Trucking in August 1998.
3.14 Ability to Carry Out Obligations. Neither the execution and
delivery of this Agreement, the performance by NDC of its obligations under
this Agreement, nor the consummation of the transactions contemplated under
this Agreement will, to the best of NDC's knowledge: (a) violate any
provision of NDC's articles of incorporation or bylaws; (b) with or without
the giving of notice or the passage of time, or both, violate, or be in
conflict with, or constitute a default under, or cause or permit the
termination or the acceleration of the maturity of, any debt, contract,
agreement or obligation of NDC, or require the payment of any prepayment or
other penalties; (c) require notice to, or the consent of, any party to any
agreement or commitment, lease or license, to which NDC is bound; (d) result
in the creation or imposition of any security interest, lien or other
encumbrance upon any property or assets of NDC; or (e) violate any statute or
law or any judgment, decree, order, regulation or rule of any court or
governmental authority to which NDC is bound or subject.
3.15 Validity of NDC Shares. The shares of NDC Common Stock to be
delivered pursuant to this Agreement, when issued in accordance with the
provisions of this Agreement, will be duly authorized, validly issued, fully
paid and nonassessable.
3.16 Full Disclosure. None of the representations and warranties made by
NDC herein, or in any exhibit, certificate or memorandum furnished or to be
furnished by NDC, or on its behalf, contains or will contain any untrue
statement of material fact, or omit any material fact the omission of which
would be misleading.
3.17 Assets. NDC has good and marketable title to all of its tangible
properties and such tangible properties are not subject to any material liens
or encumbrances.
3.18 Material Contracts and Obligations. NDC has no material contracts
to which it is a party or by which it is bound.
3.19 Consents and Approvals. No consent, approval or authorization of,
or declaration, filing or registration with, any governmental or regulatory
authority is required to be made or obtained by NDC in connection with: (a)
the execution and delivery by NDC of its obligations under this Agreement; (b)
the performance by NDC of its obligations under this Agreement; or (c) the
consummation by NDC of the transactions contemplated by this Agreement.
3.20 Real Property. NDC does not own, use or claim any interest in any
real property, including without limitation any license, leasehold or any
similar interest in real property.
3.21 Indemnification. NDC and J. Xxxxxx Xxxx agree to indemnify, defend
and hold U.S. Trucking and its shareholders harmless against and in respect of
any and all claims, demands, losses, costs, expenses, liabilities, including
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interest, penalties, and reasonable attorney fees, that they shall incur or
suffer, which arise out of, result from or relate to any breach of, or failure
by, NDC to perform any of its representations, warranties or covenants in this
Agreement or any loans which have previously been made by NDC to Xxxx
International, Inc. ("Xxxx") or any investments made by NDC in Xxxx.
ARTICLE 4
COVENANTS
4.1 Investigative Rights. From the date of this Agreement until the
Closing Date, each party shall provide to the other party, and such other
party's counsels, accountants, auditors, and other authorized representatives,
full access during normal business hours and upon reasonable advance written
notice to all of each party's properties, books, contracts, commit- ments, and
records for the purpose of examining the same. Each party shall furnish the
other party with all information concerning each party's affairs as the other
party may reasonably request. If the transaction contemplated hereby is not
completed, all documents received by each party and/or its attorneys and
accountants, auditors or other authorized representatives shall be returned to
the other party who provided same upon request. The parties hereto, their
directors, employees, agents and representatives shall not disclose any of the
information described above unless such information is already disclosed to
the public, without the prior written consent of the party to which the
confidential information pertains. Each party shall take such steps as are
necessary to prevent disclosure of such information to unauthorized third
parties.
4.2 Conduct of Business. Prior to the Closing, NDC and U.S. Trucking
shall each conduct its business in the normal course, and shall not sell,
pledge, or assign any assets, without the prior written approval of the other
party, except in the regular course of business. Except as provided herein,
neither NDC nor U.S. Trucking shall amend its Articles of Incorporation or
Bylaws, declare dividends, redeem or sell stock or other securities, incur
additional or newly-funded liabilities, acquire or dispose of fixed assets,
change employment terms, enter into any material or long-term contract,
guarantee obligations of any third party, settle or discharge any balance
sheet receivable for less than its stated amount, pay more on any liability
than its stated amount, or enter into any other transaction other than in the
regular course of business except as otherwise contemplated herein.
Notwithstanding the foregoing, U.S. Trucking shall be permitted to continue to
engage in and consummate any and all acquisitions, and incur obligations and
issue securities in connection therewith, as it shall deem advisable.
ARTICLE 5
CONDITIONS PRECEDENT TO NDC'S PERFORMANCE
5.1 Conditions. The obligations of NDC hereunder shall be subject to
the satisfaction, at or before the Closing, of all the conditions set forth in
this Article 5. NDC may waive any or all of these conditions in whole or in
part without prior notice; provided, however, that no such waiver of a
condition shall constitute a waiver by NDC of any other condition of or any of
NDC's other rights or remedies, at law or in equity, if U.S. Trucking shall be
in default of any of their representations, warranties, or covenants under
this Agreement.
5.2 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by U.S. Trucking in this
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Agreement or in any written statement that shall be delivered to NDC by U.S.
Trucking under this Agreement shall be true and accurate on and as of the
Closing Date in all material respects as though made at that time.
5.3 Performance. U.S. Trucking shall have performed, satisfied, and
complied with all covenants, agreements, and conditions required by this
Agreement to be performed or complied with by it, on or before the Closing
Date.
5.4 Acceptance by U.S. Trucking Shareholders. The holders of not less
than 95% of the issued and outstanding shares of common stock of U.S. Trucking
shall have agreed to exchange their shares for shares of NDC Common Stock.
5.5 Absence of Litigation. No action, suit, or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened against U.S. Trucking on or before the Closing Date.
5.6 Officer's Certificate. U.S. Trucking shall have delivered to NDC a
certificate, dated the Closing Date, and signed by the Chief Executive Officer
of U.S. Trucking, certifying that each of the conditions specified in Sections
5.2 through 5.5 hereof have been fulfilled.
ARTICLE 6
CONDITIONS PRECEDENT TO U.S. TRUCKING'S PERFORMANCE
6.1 Conditions. U.S. Trucking's obligations hereunder shall be subject
to the satisfaction, at or before the Closing, of all the conditions set forth
in this Article 6. U.S. Trucking may waive any or all of these conditions in
whole or in part without prior notice; provided, however, that no such waiver
of a condition shall constitute a waiver by U.S. Trucking of any other
condition of or any of U.S. Trucking's rights or remedies, at law or in
equity, if NDC shall be in default of any of its representations, warranties,
or covenants under this Agreement.
6.2 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by NDC in this Agreement or in
any written statement that shall be delivered to U.S. Trucking by NDC under
this Agreement shall be true and accurate on and as of the Closing Date as
though made at that time.
6.3 Performance. NDC shall have performed, satisfied, and complied with
all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by them, on or before the Closing Date.
6.4 Absence of Litigation. No action, suit or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened against NDC on or before the Closing Date.
6.5 Directors of NDC. Effective on the Closing, NDC shall have fixed
the size of its Board of Directors at two (2) persons, and such Board of
Directors shall include Xxxxx X. Xxxxxx and W. Xxxxxxx Xxxx and the present
directors have resigned.
6.6 Officers of NDC. Effective on the Closing, NDC shall have elected
the following new Officers of NDC and the present officers shall have
resigned:
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Xxxxx X. Xxxxxx - President
W. Xxxxxxx Xxxx - Executive Vice President
Xxxx Xxxxxxx - Chief Financial Officer
Xxxxxx Xxxx - Secretary
6.7 Name Change, Reverse Split, and Change in Authorized Shares. NDC
shall have changed its name to U.S. Trucking, Inc., completed a 1 for 160
reverse stock split, and reduced the number of authorized shares of common
stock from 1.5 billion to 75 million.
6.8 Assets. At the time of the closing NDC shall have cash assets of
no less than $30,000 and no liabilities.
6.9 SEC Status. NDC shall be current in its 1934 Act filings with the
Securities and Exchange Commission and there shall be no impediment to NDC
becoming a fully reporting Company with its common stock registered under
Section 12(g) of the 1934 Act upon the filing of Form 8A with the Securities
and Exchange Commission.
6.10 Officer's Certificate. NDC shall have delivered to U.S. Trucking a
certificate, dated the Closing Date, and signed by the President of NDC
certifying that each of the conditions specified in Sections 6.2 through 6.9
have been fulfilled.
ARTICLE 7
CLOSING
7.1 Closing. The Closing of this transaction shall be held at the
offices of Xxxx Xxxxx Xxxxxxxx & Xxxxxx, P.C., 600 Seventeenth Street, Suite
0000 Xxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000, or such other place as shall be
mutually agreed upon, on September 7, 1998, or such other date as shall be
mutually agreed upon by the parties. At the Closing:
(a) U.S. Trucking shall deliver Letters of Acceptance and the
certificates representing the shares of U.S. Trucking held by the shareholders
of U.S. Trucking accepting the Exchange Offer ("Accepting Shareholders") to
NDC.
(b) Each Accepting Shareholder shall receive a certificate or
certificates representing the number of shares of NDC Common Stock for which
the shares of U.S. Trucking common stock shall have been exchanged.
(c) NDC shall deliver a signed Consent and/or Minutes of the
Directors of NDC approving this Agreement and each matter to be approved by
the Directors of NDC under this Agreement and the resignations of its officers
and directors.
(d) U.S. Trucking shall deliver a signed Consent or Minutes of the
Directors of U.S. Trucking approving this Agreement and each matter to be
approved by the Directors of U.S. Trucking under this Agreement.
(e) NDC shall deliver an officer's certificate, as described in
Section 6.10 hereof, dated the Closing Date, that all representations,
warranties, covenants and conditions set forth in this Agreement on behalf of
NDC are true and correct as of, or have been fully performed and complied with
by, the Closing Date.
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(f) U.S. Trucking shall deliver an officer's certificate, as
described in Section 5.6 hereof, dated the Closing Date, that all
representations, warranties, covenants and conditions set forth in this
Agreement on behalf of U.S. Trucking are true and correct as of, or have been
fully performed and complied with by, the Closing Date.
ARTICLE 8
MISCELLANEOUS
8.1 Captions and Headings. The Article and paragraph headings
throughout this Agreement are for convenience and reference only, and shall in
no way be deemed to define, limit, or add to the meaning of any provision of
this Agreement.
8.2 No Oral Change. This Agreement and any provision hereof, may not be
waived, changed, modified, or discharged orally, but it can be changed by an
agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, or discharge is sought.
8.3 Non-Waiver. Except as otherwise expressly provided herein, no
waiver of any covenant, condition, or provision of this Agreement shall be
deemed to have been made unless expressly in writing and signed by the party
against whom such waiver is charged; and (i) the failure of any party to
insist in any one or more cases upon the performance of any of the provisions,
covenants, or conditions of this Agreement or to exercise any option herein
contained shall not be construed as a waiver or relinquishment for the future
of any such provisions, covenants, or conditions, (ii) the acceptance of
performance of anything required by this Agreement to be performed with
knowledge of the breach or failure of a covenant, condition, or provision
hereof shall not be deemed a waiver of such breach or failure, and (iii) no
waiver by any party of one breach by another party shall be construed as a
waiver with respect to any other or subsequent breach.
8.4 Time of Essence. Time is of the essence of this Agreement and of
each and every provision hereof.
8.5 Entire Agreement. This Agreement contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings.
8.6 Choice of Law. This Agreement and its application shall be governed
by the laws of the State of Colorado, except to the extent its conflict of
laws provisions would apply the laws of another jurisdiction.
8.7 Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice
is to be given, or on the third day after mailing if mailed to the party to
whom notice is to be given, by first class mail, registered or certified,
postage prepaid, and properly addressed or the following day if sent by
Federal Express, Airborne Express, DHL, UPS or other recognized overnight
courier. Any notice hereunder shall also be transmitted by facsimile. The
addresses and facsimile numbers to be used are as follows:
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NDC:
Northern Dancer Corporation
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
with a copy to:
Xxx X. Xxxxxx, Esq.
Xxxx Xxxxx Xxxxxxxx & Xxxxxx, P.C.
600 Seventeenth Street, Suite 0000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
U.S. Trucking:
U.S. Trucking, Inc.
0000 Xxxxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Fax (000) 000-0000 and (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxx, Esq.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Fax (000) 000-0000 and (000) 000-0000
8.8 Binding Effect. This Agreement shall inure to and be binding upon
the heirs, executors, personal representatives, successors and assigns of each
of the parties to this Agreement.
8.9 Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such other
and further documents and take such other and further actions as may be
necessary or convenient to effect the transaction described herein.
8.10 Brokers. The parties hereto represent and agree that no broker has
brought about the aforementioned transaction and no finder's fee has been paid
or is payable by any party. Each of the parties hereto shall indemnify and
hold the other harmless against any and all claims, losses, liabilities or
expenses which may be asserted against it as a result of its dealings,
arrangements or agreements with any broker or person, except as described in
this paragraph.
8.11 Announcements. NDC and U.S. Trucking will consult and cooperate
with each other as to the timing and content of any announcements of the
transactions contemplated hereby to the general public or to employees,
customers or suppliers.
8.12 Xxxx International. After the Closing, U.S. Trucking agrees that
neither U.S. Trucking nor NDC will file a suit against Xxxx International or
any of its officers, directors or principal shareholders for payment of any
promissory notes which Xxxx International has executed in favor of NDC.
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8.13 Expenses. NDC and U.S. Trucking will pay their own legal,
accounting and any other out-of-pocket expenses reasonably incurred in
connection with this transaction, whether or not the transaction contemplated
hereby is consummated.
8.14 Exhibits. As of the execution hereof, the parties hereto have
provided each other with the Exhibits provided for hereinabove, including any
items referenced therein or required to be attached thereto. Any material
changes to the Exhibits shall be immediately disclosed to the other party.
AGREED TO AND ACCEPTED as of the date first above written.
NORTHERN DANCER CORPORATION U.S. TRUCKING, INC.
By /s/ Xxxxxx X. X'Xxxxxx By /s/ Xxxxx X. Xxxxxx
Xxxxxx X. X'Xxxxxx, President Xxxxx X. Xxxxxx, President
AS TO SECTION 3.21 ONLY:
J. XXXXXX XXXX
/s/ J. Xxxxxx Xxxx
J. Xxxxxx Xxxx
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SCHEDULE 1
Stock Ownership of U.S. Trucking and
Shares of NDC to be Exchanged Therefor
Number of
U.S. Trucking Number of
Name Shares NDC Shares
Logistics, L.L.C. 13,000,000 13,000,000
Xxxx Xxxxxx 1,000,000 1,000,000
LMU & Company 500,000 500,000
Waterways Group, Inc. 377,300 377,300
Xxxx Xxxxx 40,000 40,000
Xxxxxx Xxxxxxxx 233,333 233,333
Market Edge Inc. 93,333 93,333
Xxx X. Xxxxxxxxx 106,668 106,668
Xxxxx Xxxxx 33,333 33,333
Sebrite Financial 33,333 33,333
Xxxxxxx Xxxxxx 33,333 33,333
Xxxx Xxxxxx 160,000 160,000
Xxxxx Xxxx 53,333 53,333
Xxxxx Xxxxxxxx 53,333 53,333
Xxx Xxxxxxxxxxx 26,668 26,668
Transportation Services Co. 133,333 133,333
Total 15,877,300 15,877,300
SCHEDULE 2
U.S. TRUCKING, INC.
("U.S. Trucking")
2.2 Capital:
U.S. Trucking has agreed with the shareholders in its recent private
offering that it will use its best efforts to register the shares issued in
the private offering within 180 days of the closing of the private offering.
2.4 Directors and Officers of U.S. Trucking:
Xxxxx X. Xxxxxx - President, Chief Executive Officer and Director
W. Xxxxxxx Xxxx - Executive Vice President and Director
Xxxx Xxxxxxx - Chief Financial Officer
2.17 Material Contracts of U.S. Trucking:
SCHEDULE 3
NORTHERN DANCER CORPORATION
("NDC")
3.2 Directors and Officers of NDC:
Xxxxxx X. X'Xxxxxx - President, Treasurer and Director
J. Xxxxxx Xxxx - Secretary and Director
Xxxxx Xxxxxxx - Director
3.19 Material Contracts of NDC
None.
