EXCHANGE AGREEMENT
This
Exchange Agreement (hereinafter the “Agreement”)
is
entered into on the date set forth on the signature page hereto, but effective
as of February 26, 2008, by and among URON Inc., a Minnesota corporation
(hereinafter “URON”);
National Cash & Credit, LLC, a Minnesota limited liability company
(“National
Cash”);
and
the members of National Cash listed on Schedule
I
attached
hereto (each a “National
Cash Member,”
and
collectively the “National
Cash Members”).
RECITALS
A. The
board
of directors of URON and the board of governors of National Cash have adopted
resolutions approving and adopting the proposed exchange transaction (the
“Exchange”)
whereby URON will acquire from the National Cash Members all of the issued
and
outstanding Class A Membership Interests and Class B Membership Interests of
National Cash in exchange for shares of Common Stock of URON (“URON
Common Stock”),
upon
the terms and conditions set forth in this Agreement.
B. Pursuant
to the Exchange, all Class A and Class B Membership Interests of National Cash
shall be exchanged for an aggregate of 1,114,891 shares of URON Common
Stock.
C. Each
National Cash Member owns the number of Class A or Class B Membership Interests
of National Cash set forth opposite such National Cash Member’s name on
Schedule
I
attached
hereto (collectively, the “National
Cash Membership Interests”).
D. The
National Cash Members collectively own all of the issued and outstanding
National Cash Membership Interests and the National Cash Members desire to
sell
and transfer to URON their respective National Cash Membership Interests
pursuant to the terms and conditions of this Agreement.
E. National
Cash will enter into this Agreement for the purpose of evidencing its consent
to
the consummation of the Exchange and for the purpose of making certain
representations, warranties, covenants and agreements.
NOW,
THEREFORE, the parties hereto, intending to be legally bound, agree as
follows:
1.1 The
Exchange.
(a) Upon
the
terms and subject to the conditions hereof, at the Closing (as hereinafter
defined), the National Cash Members will sell, convey, assign, transfer and
deliver to URON certificates representing the National Cash Membership
Interests, and URON will issue to each National Cash Member, in exchange for
such National Cash Member’s National Cash Membership Interests, (i) that number
of shares of URON Common Stock set forth opposite such National Cash Member’s
name on Schedule
I
attached
hereto, and (ii) a cash payment of $100,000 (to be apportioned among the
National Cash Members as they shall determine and designate). The total number
of shares of URON Common Stock to be issued to the National Cash Members at
the
Closing will be 1,114,891.
(b) The
closing of the Exchange (the “Closing”)
shall
take place effective as of the date first set forth above (sometimes referred
to
hereinafter as the “Closing
Date”).
(c) The
shares of URON Common Stock to be issued to the National Cash Members hereunder
shall be “restricted securities” as that term is defined in Rule 144 promulgated
under the Securities Act of 1933 (the “Securities
Act”)
and
the certificates evidencing such shares shall bear standard restrictive legends.
(d)
For
purposes of this Agreement and the exhibits and schedules attached hereto,
the
following terms shall have the meanings specified or referred to below, unless
the context otherwise requires:
“Affiliate”
means
with respect to a specified Person (as defined in Section 2(k) below), any
other
Person that directly, or indirectly through one or more intermediaries, controls
or is controlled by, or is under common control with, the specified Person;
it
being understood and agreed that, for purposes of this definition, the term
“control” means the possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities or other ownership interest, by
contract or otherwise.
“Code”
means
the Internal Revenue Code of 1986, as amended.
“Liability”
means
any liability or obligation (whether known or unknown, whether asserted or
unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, whether incurred or consequential and
whether due or to become due), including any liability for taxes.
“Material
Adverse Effect”
means
with respect to any Person, any event or events or any change in or effect
on
such Person’s financial condition, business, prospects, operations, customers,
suppliers, employee relationships, assets, properties, or results of operations
that, when taken as a whole, (i) is greater than $50,000, (ii) has
materially interfered or is reasonably likely to materially interfere with
the
ongoing operations of such Person’s business or (iii) singly or in the
aggregate has resulted in, or is reasonably likely to have, a material adverse
effect on the ongoing conduct of the business of such Person; provided, however,
that any adverse effect arising out of or resulting from (x) an event or series
of events or circumstances affecting the United States economy generally or
the
economy generally of any other country in which the Person operate, or (y)
the
entering into of this Agreement and the consummation of the transactions
contemplated thereby, shall be excluded in determining whether a Material
Adverse Effect has occurred.
2. Representations
Relating to National Cash.
Each of
the National Cash Members and National Cash represents and warrants as follows,
which warranties and representations shall also be true as of the Closing except
as set forth in the disclosure schedules attached to this
Agreement:
(a) National
Cash has the power to enter into this Agreement and to perform its obligations
hereunder. The execution and delivery of this Agreement and the consummation
of
the transactions contemplated hereby have been duly authorized by the board
of
governors of National Cash. This Agreement has been duly executed and delivered
by National Cash and constitutes a legal, valid and binding obligation of
National Cash, enforceable against National Cash in accordance with its terms,
except as enforcement may be limited by applicable bankruptcy, insolvency or
other laws affecting creditor’s rights generally or by legal principles of
general applicability governing the availability of equitable remedies.
(b) Attached
hereto as Schedule
2(b)
are the
unaudited consolidated balance sheets and statements of income, changes in
members’ equity, and cash flow as of and for the fiscal year ended December 31,
2007 (collectively the “National
Cash Financial
Statements”).
The
National Cash Financial Statements (including the notes thereto) have been
prepared in accordance with GAAP throughout the periods covered thereby and
present fairly the financial condition of National Cash as of such dates and
the
results of operations of National Cash for such periods.
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(c) Since
December 31, 2007, there has not been any material adverse change in the
condition of National Cash (financial or otherwise).
(d) National
Cash is not a party to, or the subject of, any pending litigation, claims,
or
governmental investigation or proceeding not reflected in National Cash
Financial Statements, and to the actual knowledge of its executive officers
and
directors (herein “Knowledge”),
there
are no lawsuits, claims, assessments, investigations, or similar matters,
threatened or contemplated against or affecting National Cash or the management
or properties of National Cash. Neither National Cash nor any of its assets
or
properties are subject to any outstanding court order or consent
decree.
(e) National
Cash has been duly organized and is validly existing and in good standing under
the laws of the State of Minnesota, and has the power to own, lease and operate
its property and to carry on its business as now being conducted and is duly
qualified to do business and in good standing to do business in any jurisdiction
where so required except where the failure to so qualify would have no Material
Adverse Effect on National Cash.
(f) National
Cash has filed all material federal, state, county and local income, excise,
property and other tax, governmental and/or other returns, forms, filings,
or
reports, which are due or required to be filed by it prior to the date hereof
and have paid or made adequate provision in National Cash Financial Statements
for the payment of all taxes, fees, or assessments which have or may become
due
pursuant to such returns, filings or reports or pursuant to any assessments
received. National Cash is not delinquent or obligated for any tax, penalty,
interest, delinquency or charge and there are no tax liens or encumbrances
applicable to it.
(g) All
outstanding National Cash Membership Interests are, and shall be at Closing,
validly issued, fully paid and nonassessable. There are no existing options,
convertible or exchangeable securities, calls, claims, warrants, preemptive
rights, registration rights or commitments of any character relating to the
issued or unissued securities of National Cash. There are no voting trusts,
proxies or other agreements, commitments or understandings of any character
to
which National Cash is a party or by which National Cash is bound with respect
to the voting of any National Cash Membership Interest. There are no outstanding
obligations to repurchase, redeem or otherwise acquire any National Cash
Membership Interest.
(h) National
Cash is the owner of, or has a valid leasehold interest in, the properties
and
assets used by it located on its premises, or shown on the most recent balance
sheet comprising a part of the National Cash Financial Statements (the
“Most
Recent Balance Sheet”)
or
acquired after the date thereof, free and clear of all liens and encumbrances,
except for properties and assets disposed of in the Ordinary Course of Business
since the date of the Most Recent Balance Sheet. For purposes of this Agreement,
the term “Ordinary
Course of Business”
means
the ordinary course of business consistent with past custom and practice
(including with respect to quantity and frequency).
(i) National
Cash has no material liability (whether known or unknown, whether asserted
or
unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, and whether due or to become due, including
any liability for taxes), except for (i) liabilities set forth in the National
Cash Financial Statements, (ii) liabilities set forth in Schedule
2(i),
and
(iii) of liabilities that have arisen after the date of the Most Recent Balance
Sheet in the Ordinary Course of Business and Liabilities incurred in connection
with the transactions contemplated by this Agreement.
(j) National
Cash owns no real property. National Cash has delivered to URON a true and
complete copy of each lease agreement relating to real property under which
National Cash is the lessee (the “Leases”).
There
are no oral lease agreements for real property under which National Cash is
the
lessee. With respect to each of the Leases: (i) such Lease is legal, valid,
binding, enforceable and in full force and effect; (ii) the transactions
contemplated by this Agreement do not require the consent of any other party
to
such Lease, will not result in a breach of or default under such Lease, and
will
not otherwise cause such Lease to cease to be legal, valid, binding, enforceable
and in full force and effect on substantially the same terms following the
Closing; (iii) National Cash’s possession and quiet enjoyment of the Leased Real
Property under such Lease has not been disturbed and, to the Knowledge of
National Cash, there are no disputes with respect to such Lease; (iv) neither
National Cash nor, to the Knowledge of National Cash, any other party to the
Lease is in breach of or default under such Lease; (v) no security deposit
or
portion thereof deposited with respect to such Lease has been applied in respect
of a breach of or default under such Lease that has not been redeposited in
full; (vi) the other party to such Lease is not an affiliate of, and otherwise
does not have any economic interest in, National Cash; and (vii) National Cash
has not subleased, licensed or otherwise granted any person the right to use
or
occupy any leased real property
or
any portion thereof.
3
(k) Schedule
2(k)
lists
the following contracts and other agreements presently in effect to which
National Cash is a party: (i) any agreement (or group of related agreements)
for
the lease of personal property to or from any person or entity (“Person”)
providing for lease payments in excess of $50,000 per annum: (ii) any agreement
(or group of related agreements) for the purchase or sale of raw materials,
commodities, supplies, products, or other personal property, or for the
furnishing or receipt of services, the performance of which will extend over
a
period of more than one year or involve consideration in excess of $50,000;
(iii) any agreement concerning a partnership or joint venture; (iv) any
agreement (or group of related agreements) under which it has created, incurred,
assumed, or guarantied any indebtedness for borrowed money, or any capitalized
lease obligation, in excess of $50,000 or under which it has imposed an
encumbrance on any of its assets, tangible or intangible; (v) any material
agreement concerning confidentiality or non-competition; (vi) any profit
sharing, stock option, stock purchase, stock appreciation, deferred
compensation, severance, or other material plan or arrangement for the benefit
of its current or former directors, officers, and employees; (vii) any
collective bargaining agreement; (viii) any agreement for the employment of
any
individual on a full-time, part-time, consulting, or other basis providing
annual compensation or severance benefits in excess of $50,000; (ix) any
agreement under which it has advanced or loaned any amount to any of its
directors, officers, and employees outside the Ordinary Course of Business;
(x)
any agreement under which National Cash has advanced or loaned any other Person
amounts in the aggregate exceeding $50,000; or (xi) any other agreement (or
group of related agreements) the performance of which involves consideration
in
excess of $50,000.
National
Cash has delivered to URON a correct and complete copy of each written agreement
(as amended to date) listed in Schedule
2(k)
and a
written summary setting forth the material terms and conditions of each oral
agreement referred to in such Schedule. With respect to each such agreement:
(A)
the agreement is legal, valid, binding, enforceable, and in full force and
effect in all material respects; (B) to the Knowledge of National Cash, no
party
is in material breach or default, and no event has occurred that with notice
or
lapse of time would constitute a material breach or default, or permit
termination, modification, or acceleration, under the agreement; and (C) to
the
Knowledge of National Cash, no party has repudiated any material provision
of
the agreement.
(l) All
notes
and accounts receivable were generated by National Cash in the Ordinary Course
of Business and are
valid
receivables subject to no setoffs or counterclaims, are current and collectible.
National Cash has no Knowledge of any fact or circumstance that would cause
it
to believe that the collection percentage with respect to the notes and
receivables will substantially vary from the average collection experience
of
National Cash over the prior three years.
4
(m) With
respect to each material insurance policy of National Cash: (A) the policy
is
legal, valid, binding, enforceable, and in full force and effect in all material
respects; (B) to the Knowledge of National Cash, none of National Cash or any
other party to the policy is in material breach or default (including with
respect to the payment of premiums or the giving of notices), and no event
has
occurred that, with notice or the lapse of time, would constitute such a
material breach or default, or permit termination, modification, or
acceleration, under the policy; and (C) no party to the policy has repudiated
any material provision thereof. National Cash has no material self-insurance
arrangements.
(n) National
Cash has no employee benefit plans.
(o) No
Affiliate of National Cash, nor any member of the family of an Affiliate of
National Cash, has been involved in any material business arrangement or
relationship with National Cash within the past 12 months, and neither such
Affiliate nor any member of such Affiliate’s family owns any material asset,
tangible or intangible, that is used in the business of National
Cash.
(p) The
minute books, and other documents and records of National Cash have been or
will
be made available to URON prior to the Closing.
(q) The
execution of this Agreement does not violate or breach any material agreement
or
contract to which National Cash is a party, and National Cash, to the extent
required, has (or will have by Closing) obtained all necessary approvals or
consents required by any agreement to which National Cash is a party. The
execution and performance of this Agreement will not violate or conflict with
any provision of the articles of organization or bylaws or member control
agreement of National Cash.
(r) National
Cash has complied with all of the provisions relating to the issuance of
securities, and for the registration thereof, under the Securities Act, other
applicable securities laws, and all applicable blue sky laws in connection
with
any and all of its stock issuances. There are no outstanding, pending or
threatened stop orders or other actions or investigations relating thereto
involving federal and state securities laws. All issued and outstanding shares
of National Cash’s capital stock were offered and sold in compliance with
federal and state securities laws and were not offered, sold or issued in
violation of any preemptive right, right of first refusal or right of first
offer and are not subject to any right of recission.
(s) National
Cash is and has been in compliance with, and National Cash has conducted any
business previously owned or operated by it in compliance with, all applicable
laws, orders, rules and regulations of all governmental bodies and agencies,
including applicable securities laws and regulations and environmental laws
and
regulations, except where such noncompliance has and will have, in the
aggregate, no Material Adverse Effect.
(t) The
closing documents and the consummation by National Cash of the transactions
contemplated hereby do not and will not (i) require the consent, approval or
action of, or any filing or notice to, any corporation, firm, person or other
entity or any public, governmental or judicial authority (except for such
consents, approvals, actions, filing or notices the failure of which to make
or
obtain will not in the aggregate have a Material Adverse Effect), other than
the
consent of the members of National Cash; (ii) violate any order, writ,
injunction, decree, judgment, ruling, law, rule or regulation of any federal,
state or foreign court, administrative agency or commission or other
governmental authority or instrumentality (a “Governmental
Authority”)
applicable to National Cash, or its business or assets; or (iii) constitute
a
material breach of any agreement, indenture, mortgage, license or other
instrument or document to which National Cash is a party or to which it is
otherwise subject.
5
(u) There
are
no disagreements of any kind presently existing, or reasonably anticipated
by
National Cash to arise, between the accountants and lawyers formerly or
presently employed by National Cash.
(v) Neither
National Cash nor any of its past or present officers or directors is, or ever
has been, the subject of any formal or informal inquiry or investigation by
the
Securities and Exchange Commission (“SEC”)
or The
National Association of Securities Dealers, Inc. (“NASD”).
(w) No
representation or warranty by National Cash contained in this Agreement and
no
statement contained in any certificate, schedule or other communication
furnished pursuant to or in connection with the provisions hereof contains
or
shall contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of
the
circumstances under which they were made, not misleading. There is no current
or
prior event or condition of any kind or character pertaining to National Cash
that may reasonably be expected to have a Material Adverse Effect on National
Cash. Except as specifically indicated elsewhere in this Agreement, all
documents delivered by National Cash in connection herewith have been and will
be complete originals, or exact copies thereof.
3. Representations
of Nation Cash Members.
The
National Cash Members hereby represent and warrant to URON as
follows:
(a) Each
National Cash Member owns, beneficially and of record, good and marketable
title
to the National Cash Membership Interests set forth opposite such National
Cash
Member’s name on Schedule
I
attached
hereto, free and clear of all security interests, liens, adverse claims,
encumbrances, equities, proxies, options or member or member control agreements.
Each National Cash Member represents that such person has no right or claims
whatsoever to any National Cash Membership Interests, other than shares listed
across such National Cash Member’s name on Schedule
I and
does
not have any options, warrants or any other instruments entitling such National
Cash Member to exercise to purchase or convert into National Cash Membership
Interests, except as set forth in Schedule
I.
At the
Closing, the National Cash Members will convey to URON good and marketable
title
to National Cash Membership Interests, free and clear of any security interests,
liens, adverse claims, encumbrances, equities, proxies, options, member control
agreements or restrictions.
(b)
This
Agreement has been duly and validly executed and delivered by each National
Cash
Member and constitutes a valid and binding agreement of each National Cash
Member, enforceable against each National Cash Member in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency
or
other similar laws affecting the enforcement of creditors' rights generally
or
by general principles of equity.
(c) Each
National Cash Member acknowledges that none of the shares of URON Common Stock
will be registered pursuant to the Securities Act or any applicable state
securities laws, that the URON Common Stock will be characterized as “restricted
securities” under federal securities laws, and that under such laws and
applicable regulations the URON Common Stock cannot be sold or otherwise
disposed of without registration under the Securities Act or an exemption
therefrom. In this regard, each National Cash Member is familiar with Rule
144
promulgated under the Securities Act, as currently in effect, and understands
the resale limitations imposed thereby and by the Securities Act.
(d) Each
National Cash Member (i) is acquiring the URON Common Stock solely for his
own
account for investment purposes, and not with a view to the distribution
thereof, (ii) is a sophisticated investor with knowledge and experience in
business and financial matters, (iii) has received certain information
concerning URON and has had the opportunity to obtain additional information
as
desired in order to evaluate the merits and the risks inherent in holding the
URON Common Stock, (iv) is able to bear the economic risk of acquiring the
URON
Common Stock pursuant to the terms of this Agreement, including a complete
loss
of his investment in the URON Common Stock, and (v) is an “Accredited Investor”
as that term is defined in Rule 501 of Regulation D promulgated under the
Securities Act.
6
(e) Each
National Cash Member acknowledges that the certificate(s) representing such
National Cash Member’s URON Common Stock shall each conspicuously set forth on
the face or back thereof a legend in substantially the following
form:
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID
ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
4. Representations
of URON.
URON
hereby represent and warrant as follows, each of which representations and
warranties shall also be true as of the Closing except as set forth in the
disclosure schedules attached to this Agreement:
(a) As
of the
Closing, the shares of URON Common Stock to be issued and delivered to the
National Cash Members hereunder and in connection herewith will, when so issued
and delivered, constitute duly authorized, validly and legally issued,
fully-paid, nonassessable shares of URON capital stock, will not be issued
in
violation of any preemptive or similar rights and will be issued free and clear
of all liens and encumbrances.
(b) URON
has
the corporate power to enter into this Agreement and to perform its obligations
hereunder. The execution and delivery of this Agreement and the consummation
of
the transactions contemplated hereby have been duly authorized by the board
of
directors of URON. This Agreement has been duly executed and delivered by each
of URON and constitutes a legal, valid and binding obligation of URON,
enforceable against URON in accordance with its terms except as enforcement
may
be limited by applicable bankruptcy, insolvency or other laws affecting
creditor’s rights generally or by legal principles of general applicability
governing the availability of equitable remedies.
(c) URON
has
made available to National Cash a true and complete copy of the audited
financial statements of Wyoming Financial Lenders, Inc. for the fiscal years
ended September 30, 2006 and September 30, 2007 (the “URON
Financial Statements”).
The
URON Financial Statements fairly present, in all material respects, the
financial condition of URON as of the date thereof and the results of its
operations for the periods then ended. The URON Financial Statements have been
prepared in accordance with generally accepted accounting principles applied
on
a consistent basis.
(d) Since
December 31, 2007, there has not been any material adverse change in the
condition of the URON (financial or otherwise).
(e) URON
is
not a party to, or the subject of, any pending litigation, claims, or
governmental investigation or proceeding not reflected in the URON Financial
Statements, and to the Knowledge of URON, there are no lawsuits, claims,
assessments, investigations, or similar matters, threatened or contemplated
against or affecting URON, or the management or properties of URON. URON is
not
subject to any order, judgment, injunction or decree of any Governmental
Authority or arbitrator.
7
(f) URON
is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation; has the corporate power to own, lease and
operate its property and to carry on its business as now being conducted and
is
duly qualified to do business and in good standing to do business in any
jurisdiction where so required except where the failure to so qualify would
have
no Material Adverse Effect on URON. URON is not required to be qualified to
do
business in any state other than in their respective states of
incorporation.
(g) URON
has
filed all federal, state, county and local income, excise, property and other
tax, governmental and/or other returns, forms, filings, or reports, which are
due or required to be filed by it prior to the date hereof and have paid or
made
adequate provision in the URON Financial Statements for the payment of all
taxes, fees, or assessments which have or may become due pursuant to such
returns, filings or reports or pursuant to any assessments received. URON is
not
delinquent or obligated for any tax, penalty, interest, delinquency or charge
and there are no tax liens or encumbrances applicable to either
corporation.
(h) As
of the
date of this Agreement, URON’s authorized capital stock consists of 10,000,000
shares of URON Common Stock, no par value per share, of which 7,749,753 shares
are issued and outstanding, and 10,000,000 shares of preferred stock, no par
value per share, of which 10,000,000 have been designated Series A Preferred
Stock and 10,000,000 shares are issued and outstanding. All outstanding shares
of capital stock of URON are, and shall be at Closing, validly issued, fully
paid and nonassessable.
(i) URON
has
not breached, nor is there any pending, or to the Knowledge of URON, any
existing or threatened claim that URON has breached, any of the terms or
conditions of any material agreements, contracts, commitments or other documents
to which it is a party or by which it is, or its properties are bound. The
execution and performance of this Agreement will not violate any provisions
of
applicable law or any agreement to which URON is subject.
(j) URON
has
complied with all of the provisions relating to the issuance of securities,
and
for the registration thereof, under the Securities Act, other applicable
securities laws, and all applicable blue sky laws in connection with any and
all
of its stock issuances. There are no outstanding, pending or threatened stop
orders or other actions or investigations relating thereto involving federal
and
state securities laws. All issued and outstanding shares of URON’s capital stock
were offered and sold in compliance with federal and state securities laws
and
were not offered, sold or issued in violation of any preemptive right, right
of
first refusal or right of first offer and are not subject to any right of
recission.
(k) All
information regarding URON which has been provided to National Cash by URON
or
set forth in any document or other communication, disseminated to any former,
existing or potential shareholders of URON or to the public or filed with the
NASD, the SEC or any state securities regulators or authorities is true,
complete, accurate in all material respects, not misleading, and was and is
in
full compliance with all securities laws and regulations.
(l) URON
is
and has been in compliance with, and URON has conducted any business previously
owned or operated by it in compliance with, all applicable laws, orders, rules
and regulations of all governmental bodies and agencies, including applicable
securities laws and regulations (including, without limitation, the Sarbanes
Oxley Act of 2002) and environmental laws and regulations, except where such
noncompliance has and will have, in the aggregate, no Material Adverse Effect.
URON has not received notice of any noncompliance with the foregoing, nor does
it have Knowledge of any claims or threatened claims in connection therewith.
URON has never conducted any operations or engaged in any business transactions
whatsoever other than as set forth in the reports URON has previously filed
with
the SEC.
8
(m) Without
limiting the foregoing, (i) URON and any other person or entity for whose
conduct URON is legally held responsible are and have been in compliance with
all applicable federal, state, regional, and local laws, statutes, ordinances,
judgments, rulings and regulations relating to any matters of pollution,
protection of the environment, health or safety, or environmental regulation
or
control, and (ii) neither URON nor any other person for whose conduct URON
is
legally held responsible has manufactured, generated, treated, stored, handled,
processed, released, transported or disposed of any hazardous substance on,
under, from or at any of URON’s properties or in connection with URON’s
operations.
There is
no pending or, to URON’s Knowledge, threatened civil or criminal litigation,
written notice of violation, formal administrative proceeding or investigation,
inquiry or information request by any Governmental Authority or other entity
relating to any environmental law involving URON.
(n) URON
has
filed all required documents, reports and schedules with the SEC, the NASD
and
any applicable state or regional securities regulators or authorities
(collectively, the “URON
SEC Documents”).
As of
their respective dates, the URON SEC Documents complied in all material respects
with the requirements of the Securities Act, the Securities Exchange Act of
1934, as amended (the “Exchange
Act”),
the
NASD rules and regulations and state and regional securities laws and
regulations, as the case may be, and, at the respective times they were filed,
none of the URON SEC Documents contained any untrue statement of a material
fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading. The financial statements (including, in each case,
any notes thereto) of URON included in the URON SEC Documents complied as to
form and substance in all material respects with applicable accounting
requirements and the rules and regulations of the SEC with respect thereto,
were
prepared in accordance with generally accepted accounting principles (except
as
may be indicated therein or in the notes thereto) applied on a consistent basis
during the periods involved (except as may be indicated therein or in the notes
thereto) and fairly presented in all material respects the financial position
of
URON as of the respective dates thereof and the results of its operations and
its cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments and to any other adjustments
described therein).
(o) Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (a) result in any payment (whether
severance pay, unemployment compensation or otherwise) becoming due from URON
to
any person or entity, including without limitation any employee, director,
officer or affiliate or former employee, director, officer or affiliate of
URON,
(b) increase any benefits otherwise payable to any person or entity, including
without limitation any employee, director, officer or affiliate or former
employee, director, officer or affiliate of URON, or (c) result in the
acceleration of the time of payment or vesting of any such
benefits.
(p) Assuming
appropriate filings and mailings are made by URON under the Securities Act,
the
Exchange Act, with the NASD, the execution and delivery by URON of this
Agreement and the closing documents and the consummation by URON of the
transactions contemplated hereby do not and will not (i) require the consent,
approval or action of, or any filing or notice to, any corporation, firm, person
or other entity or any public, governmental or judicial authority (except for
such consents, approvals, actions, filing or notices the failure of which to
make or obtain will not in the aggregate have a Material Adverse Effect); (ii)
violate any order, writ, injunction, decree, judgment, ruling, law, rule or
regulation of any Governmental Authority applicable to URON, or its business
or
assets; (iii) constitute a material breach of any agreement, indenture,
mortgage, license or other instrument or document to which URON is a party
or to
which any of them is otherwise subject; and (iv) violate or conflict with any
provision of the respective Articles of Incorporation or Articles of
Incorporation or Bylaws of either URON. To the Knowledge of officers of URON,
URON is not subject to, or a party to, any mortgage, lien, lease, agreement,
contract, instrument, order, judgment or decree or any other material
restriction of any kind or character which would prevent, hinder, restrict
or
impair the continued operation of the business of National Cash after the
Closing.
9
(q) There
are
no legal, administrative, arbitral or other proceedings, claims, suits, actions
or governmental investigations of any nature pending, or to URON’s Knowledge
threatened, directly or indirectly involving URON’s and/or officers, directors
or affiliates, including, but not limited to any stockholder claims or
derivative actions, or challenging the validity or propriety of the transactions
contemplated by this Agreement.
(r) URON:
(i)
is not in default under or in violation of (and no event has occurred that
has
not been waived that, with notice or lapse of time or both, would result in
a
default by URON under), nor has URON received notice of a claim that it is
in
default under or that it is in violation of, any indenture, mortgage, deed
of
trust or other agreement, instrument or contract to which URON is a party or
by
which it or any of its assets or properties are bound (whether or not such
default or violation has been waived), (ii) is not in violation of any order
of
any court, arbitrator or governmental body, (iii) is not and has not been in
violation of any law, order, rule, regulation, writ, injunction, judgment or
decree of any Governmental Authority having jurisdiction over URON or any of
its
business or properties, including federal and state securities laws and
regulations and (iv) is not in violation of any governmental
authorization.
(s) There
are
no disagreements of any kind presently existing, or reasonably anticipated
by
URON to arise, between the accountants and lawyers formerly or presently
employed by URON and URON.
(t) Neither
URON nor any of its past or present officers or directors is, or ever has been,
the subject of any formal or, to URON’s Knowledge, informal inquiry or
investigation by the SEC or the NASD.
(u) No
representation or warranty by URON contained in this Agreement and no statement
contained in any certificate, schedule or other communication furnished pursuant
to or in connection with the provisions hereof contains or shall contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. There is no current or prior event or
condition of any kind or character pertaining to URON that may reasonably be
expected to have a Material Adverse Effect on URON or its subsidiaries. Except
as specifically indicated elsewhere in this Agreement, all documents delivered
by URON in connection herewith have been and will be complete originals,
or
exact copies thereof.
5. Actions
Prior to Closing.
(a) Prior
to
the Closing, National Cash on the one hand, and URON and on the other hand,
shall be entitled to make such investigations of the assets, properties,
business and operations of the other party, and to examine the books, records,
tax returns, financial statements and other materials of the other party as
such
investigating party deems necessary in connection with this Agreement and the
transactions contemplated hereby. Any such investigation and examination shall
be conducted at reasonable times and under reasonable circumstances, and the
parties hereto shall cooperate fully therein. Until the Closing, and if the
Closing shall not occur, thereafter, each party shall keep confidential and
shall not use in any manner inconsistent with the transactions contemplated
by
this Agreement, and shall not disclose, nor use for their own benefit, any
information or documents obtained from the other party concerning the assets,
properties, business and operations of such party, unless such information
(i)
is readily ascertainable from public or published information, (ii) is received
from a third party not under any obligation to keep such information
confidential, or (iii) is required to be disclosed by any law or order (in
which
case the disclosing party shall promptly provide notice thereof to the other
party in order to enable the other party to seek a protective order or to
otherwise prevent such disclosure). If this transaction is not consummated
for
any reason, each party shall return to the other all such confidential
information, including notes and compilations thereof, promptly after the date
of such termination. The representations and warranties contained in this
Agreement shall not be affected or deemed waived by reason of the fact that
either party hereto discovered or should have discovered any representation
or
warranty is or might be inaccurate in any respect.
10
(b) Prior
to
the Closing, National Cash, URON agree not to issue any statement or
communications to the public or the press regarding the transactions
contemplated by this Agreement without the prior written consent of the other
parties. In the event that URON is required under federal securities law to
either (i) file any document with the SEC that discloses this Agreement or
the
transactions contemplated hereby, or (ii) to make a public announcement
regarding this Agreement or the transactions contemplated hereby, URON shall
provide National Cash with a copy of the proposed disclosure no less than 48
hours before such disclosure is made and shall incorporate into such disclosure
any reasonable comments or changes that National Cash may request.
(c) Prior
to
the Closing, except as contemplated by this Agreement, there shall be no stock
dividend, stock split, recapitalization, or exchange of shares with respect
to
or rights, options or warrants issued in respect of URON Common Stock after
the
date hereof and there shall be no dividends or other distributions paid on
URON
Common Stock after the date hereof, in each case through and including the
Closing. URON shall conduct no business, prior to the Closing, other than in
the
ordinary course of business or as may be necessary in order to consummate the
transactions contemplated hereby.
(d) Prior
to
the Closing, URON will timely file all required URON SEC Documents and comply
in
all material respects with the requirements of the Securities Act, the Exchange
Act, the NASD rules and regulations and state and regional securities laws
and
regulations.
6. Conditions
Precedent to the Obligations of National Cash.
All
obligations of National Cash under this Agreement are subject to the
fulfillment, prior to or as of the Closing, of each of the following
conditions:
(a) the
representations and warranties by or on behalf of URON contained in this
Agreement or in any certificate or document delivered pursuant to the provisions
hereof or in connection herewith shall be true and correct in all respects
at
and as of the Closing as though such representations and warranties were made
at
and as of such time; (b) URON shall have materially performed and complied
with
all covenants, agreements, and conditions set forth or otherwise contemplated
in, and shall have executed and delivered all documents required by, this
Agreement to be performed or complied with or executed and delivered by them
prior to or at the Closing; (c) a majority of the disinterested directors of
URON shall have approved in accordance with applicable state corporation law
the
execution and delivery of this Agreement and the consummation of the
transactions contemplated herein; (d) on or before the Closing Date, URON shall
have delivered to National Cash certified copies of resolutions of the board
of
directors of URON approving and authorizing the execution, delivery and
performance of this Agreement and authorizing all of the necessary and proper
action to enable URON to comply with the terms of this Agreement; (e) no
temporary restraining order, preliminary or permanent injunction or other order
issued by any court of competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the Exchange shall be in effect;
(f)
at the Closing, all instruments and documents delivered by URON pursuant to
the
provisions hereof shall be reasonably satisfactory to legal counsel for National
Cash; and (g) National Cash shall have received all necessary and required
approvals and consents from required parties.
11
7. Conditions
Precedent to the Obligations of URON.
All
obligations of URON under this Agreement are subject to the fulfillment, prior
to or at the Closing, of each of the following conditions: (a) the
representations and warranties by National Cash contained in this Agreement
or
in any certificate or document delivered pursuant to the provisions hereof
shall
be true and correct in all material respects at and as of the Closing as though
such representations and warranties were made at and as of such times; (b)
National Cash shall have materially performed and complied with, in all material
respects, all covenants, agreements, and conditions required by this Agreement
to be performed or complied with by it prior to or at the Closing; (c)
no
temporary restraining order, preliminary or permanent injunction or other order
issued by any court of competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the Exchange shall be in effect;
and
(d) the following actions shall have been completed prior to or simultaneous
with the Closing of the Exchange.
8. Events
of Termination.
This
Agreement may, by notice given in the manner hereinafter provided, be terminated
and abandoned at any time prior to completion of the Closing, as
follows:
(a) by
National Cash if (1) there has been a material breach by URON and, in the case
of such a breach relating to a covenant or agreement, such breach shall not
have
been cured within ten days after receipt by URON of notice specifying
particularly such breach, or (2) the closing conditions hereunder in favor
of
National Cash have not been satisfied by the close of business on April 30,
2008;
(b) by
URON
(1) if there has been a material breach by National Cash and, in the case of
such a breach relating to a covenant or agreement, such breach shall not have
been cured within ten days after receipt by National Cash of notice specifying
particularly such breach, or (2) if the closing conditions hereunder in favor
of
URON have not been satisfied by the close of business on April 30, 2008;
or
(c) or
at any
time by mutual written agreement of National Cash and URON.
9. Survival
and Indemnification.
All
representations, warranties, covenants and agreements contained in this
Agreement, or in any schedule, certificate, document or statement delivered
pursuant hereto, shall survive (and not be affected in any respect by) the
Closing, any investigation conducted by any party hereto and any information
which any party may receive. Notwithstanding the foregoing, the representations
and warranties contained in or made pursuant to this Agreement shall terminate
on, and no claim or action with respect thereto may be brought after, the date
that URON’s annual report on Form 10-KSB for the year ended December 31, 2008 is
filed with the SEC, except that breaches of representations, warranties and
covenants arising out of or related to the fraud or willful misconduct of any
of
the parties shall survive indefinitely. For purposes of determining damages
hereunder, damages shall mean
any
actual and out-of-pocket liabilities, obligations, losses, damages, judgments,
penalties, costs, and expenses (including, without limitation, reasonable
attorneys’ fees); provided that,
in no
event shall damages include any special, incidental, punitive, exemplary or
consequential damages or any damages for diminution in value.
10. Nature
of Representations.
All of
the parties hereto are executing and carrying out the provisions of this
Agreement in reliance solely on the representations, warranties and covenants
and agreements contained in this Agreement and the other documents delivered
at
the Closing and not upon any representation warranty, agreement, promise or
information, written or oral, made by the other party or any other person other
than as specifically set forth herein.
12
11. Documents
at Closing.
At the
Closing, the following documents shall be delivered:
(a) National
Cash will deliver, or will cause to be delivered, to URON the following: (i)
a
certificate executed by the Manager of National Cash to the effect that all
representations and warranties made by National Cash under this Agreement are
true and correct as of the Closing, the same as though originally given to
URON
on said date; (ii) a certificate from the State of Minnesota dated within ten
business days of the Closing to the effect that National Cash is in good
standing under the laws of Minnesota; (iii) such other instruments, documents
and certificates, if any, as are required to be delivered pursuant to the
provisions of this Agreement; (iv) certified copies of resolutions adopted
by
the board of governors of National Cash authorizing the Exchange; and (v) all
other items, the delivery of which is a condition precedent to the obligations
of URON, as set forth herein.
(b) URON
will
deliver or cause to be delivered to National Cash: (i) a certificate of a duly
authorized officer of URON, respectively, to the effect that all representations
and warranties of URON made under this Agreement are true and correct as of
the
Closing, the same as though originally given to National Cash and the National
Cash Members on said date; (ii) certified copies of resolutions adopted by
the
board of directors of URON authorizing the Exchange and all related matters;
(iii) certificates from the jurisdiction of incorporation of URON dated within
ten business days of the Closing Date that each of said corporations is in
good
standing under the laws of said state; and (iv) such other instruments and
documents as are required to be delivered pursuant to the provisions of this
Agreement.
12. Miscellaneous.
(a) Severability.
If any
provision of this Agreement is declared by any court or other Governmental
Body
to be null, void, or unenforceable, this Agreement shall be construed so that
the provision at issue shall survive to the extent it is not so declared null,
void, or unenforceable and all of the other provisions of this Agreement shall
remain in full force and effect.
(b)
Entire
Agreement.
This
Agreement, together with all exhibits and schedules hereto attached, constitutes
the entire agreement among the parties pertaining to the subject matter hereof
and completely supersedes all prior or contemporaneous agreements,
understandings, arrangements, commitments, negotiations, and discussions of
the
parties, whether oral or written, all of which shall have no substantive
significance or evidentiary effect. Each party acknowledges, represents, and
warrants that it has not relied on any representation, agreement, understanding,
arrangement, or commitment that has not been expressly set forth in this
Agreement. Each party acknowledges, represents and warrants that this Agreement
is fully integrated and parol evidence is not needed to reflect the intentions
of the parties. The parties specifically intend that the literal words of this
Agreement shall, alone, conclusively determine all questions concerning the
parties’ intent.
(c) Corporate
Affairs.
Each
party will make every reasonable effort to keep confidential any information
obtained by them concerning the other party, including its internal
organization, finances, procedures, and customers. Neither party will make
any
public announcement, or release any publicity regarding the other party, other
than routine oral communications with analysts, shareholders, and prospective
investors without the prior written consent (which shall not be unreasonably
withheld or delayed) of the party being named, unless, in the good faith opinion
of counsel to the party contemplating such disclosure, such disclosure is
required by law and time does not permit the party to obtain such consent,
or
such disclosure may otherwise be necessary in connection with the filing of
Tax
Returns, or claims for refunds, or in conducting a Tax audit or other
proceedings. This Section shall survive the termination of this
Agreement.
Notwithstanding anything herein to the contrary, any party (and any employee,
representative, or other agent of such party) may disclose to any and all
persons, without limitation of any kind, the tax treatment and tax structure
of
the transactions contemplated by this Agreement and all materials of any kind
(including opinions or other tax analyses) that are provided to it relating
to
such tax treatment and tax structure. For this purpose, tax treatment and tax
structure shall not include the identity of any existing or future party (or
any
affiliate of such party) to this Agreement.
13
(d) Notices.
Unless
otherwise expressly provided herein, all notices, requests, demands,
instructions, documents, and other communications to be given hereunder by
either party to the other shall be in writing, shall be sent to the address/fax
number set forth below (provided that any party may at any time change its
address for notice or other such information by giving written notice thereof
in
accordance with this Section), and shall be deemed to be duly given upon the
earliest of (a) hand delivery, or (b) the first business day after
sending by reputable overnight delivery service for next-day delivery (with
confirmation of delivery).
If
to
URON:
Attention:
Xxxx Xxxxxxxx
0000
Xxxx
Xxxxxxxx, Xxxxx 0
Xxxxxxx
Xxxxxx, XX 00000
with
a
copy to:
Xxxxxx
Xxxxxxx Xxxxxx & Brand, LLP
Attention:
Xxxx Xxxxxxxxxx
3300
Xxxxx Fargo Center
00
Xxxxx
Xxxxxxx Xxxxxx
Xxxxxxxxxxx,
XX 00000
Fax:
(000) 000-0000
If
to
National Cash:
National
Cash, LLC
Attention:
Xxxxx Xxxxxx
0000
Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxx 00000
with
a
copy to:
Cohne
Xxxxxxxxx & Xxxxx
000
Xxxx
000 Xxxxx, Xxxxx 000
Xxxx
Xxxx
Xxxx, XX 00000
Attn:
X.
X. Xxxxxxx, Xx.
Fax
No:
(000) 000-0000
(e) Amendments;
Waivers.
This
Agreement may not be amended or modified unless such amendment or modification
is in writing and signed by all of the parties to this Agreement. The terms,
covenants, representations, warranties, or conditions of this Agreement may
only
be waived in writing. Any waiver of any condition, or of the breach of any
provision, term, covenant, representation, or warranty contained in this
Agreement, in any one or more instances, shall not be deemed to be or construed
as a further or continuing waiver of any condition, or of the breach of any
other provision, term, covenant, representation, or warranty of this
Agreement.
(f) Successors
and Assigns.
The
rights and obligations under this Agreement may not be assigned or delegated
unless in writing executed by the parties hereto, and any attempted assignment
or delegation without such prior written consent shall be void and of no force
or effect. This Agreement shall inure to the benefit of, and shall be binding
upon, the successors and permitted assigns of the parties to this
Agreement.
14
(g) Governing
Law; Submission to Jurisdiction.
This
Agreement and all transactions contemplated hereby shall be governed by, and
construed and enforced in accordance with, the laws of the State of Minnesota,
and shall be treated in all respects as a State of Minnesota contract, without
regard to any state’s laws related to choice or conflict of laws.
The
parties irrevocably agree and consent to the jurisdiction of the courts of
the
State of Minnesota and the federal courts of the United States sitting in such
state for the adjudication of any matters arising under, or in connection with,
this Agreement.
(h) WAIVER
OF JURY TRIAL.
THE
PARTIES HEREBY IRREVOCABILITY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM, WHETHER AT LAW OR IN EQUITY,
ARISING OUT OF, OR RELATING TO, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
(i) Subsequent
Documentation.
At any
time, and from time to time after the Closing Date, each of the parties to
this
Agreement shall use its best efforts to take such action as may be necessary,
or
as may be reasonably requested by another party to this Agreement, to carry
out
and consummate the transactions contemplated by this Agreement.
(j) Counterparts.
This
Agreement may be executed in any number of counterparts and by different parties
on separate counterparts, each of which, when executed and delivered, shall
be
deemed to be an original, and all of which, when taken together, shall
constitute but one and the same Agreement. Delivery of an executed counterpart
of this Agreement by facsimile shall be equally as effective as delivery of
an
original executed counterpart of this Agreement. Any party delivering an
executed counterpart of this Agreement by facsimile also shall deliver an
original executed counterpart of this Agreement, but the failure to deliver
an
original executed counterpart shall not affect the validity, enforceability,
and
binding effect of this Agreement.
(k) Interpretation.
In this
Agreement, unless a clear contrary intention appears:
(i) the
singular number includes the plural number and vice versa;
(ii) reference
to any Person includes such Person’s successors and assigns, but, if applicable,
only if such successors and assigns are not prohibited by this Agreement, and
reference to a Person in a particular capacity excludes such Person in any
other
capacity or individually;
(iii) reference
to gender does not exclude the other gender;
(iv) reference
to any agreement, document, or instrument means such agreement, document, or
instrument as amended or modified and in effect from time to time in accordance
with the terms thereof;
(v) reference
to any legal requirement means such legal requirement as amended, modified,
codified, replaced, or reenacted, in whole or in part, and in effect from time
to time, including rules and regulations promulgated thereunder, and reference
to any section or other provision of any legal requirement means that provision
of such legal requirement from time to time in effect and constituting the
substantive amendment, modification, codification, replacement, or reenactment
of such section or other provision;
15
(vi) “hereunder,”
“hereof,” “hereto,” and words of similar import shall be deemed references to
this Agreement as a whole and not to any particular Article, Section, or other
provision hereof;
(vii) “including”
(and with correlative meaning “include”) means including without limiting the
generality of any description preceding such term;
(viii) “or”
is
used in the inclusive sense of “and/or”;
(ix) with
respect to the determination of any period of time, “from” means “from and
including” and “to” means “to but excluding”; and
(x) references
to documents, instruments, or agreements shall be deemed to refer as well to
all
addenda, exhibits, schedules, or amendments thereto.
16
IN
WITNESS WHEREOF,
the
parties have executed this Exchange Agreement as of February 26, 2008, but
to be
effective as of the date first above written.
| |
|
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| By: | /s/ Xxxxx Xxxxxx | |
|
Xxxxx
Xxxxxx,
Chief
Financial Officer
|
||
|
NATIONAL
CASH & CREDIT, LLC
|
||
| |
|
|
| By: |
/s/
Xxxxxxxxxxx Xxxxxx
|
|
|
Xxxxxxxxxxx
Xxxxxx,
Manager
|
||
|
“National
Cash Members”:
|
||
| |
|
|
|
/s/
Xxxxxxxxxxx Xxxxxx
|
||
|
Xxxxxxxxxxx
Xxxxxx
|
||
|
CCC,
LLC
|
||
| |
|
|
| By: |
/s/
Xxxxxxxxxxx Xxxxxx
|
|
|
Xxxxxxxxxxx
Xxxxxx,
Manager
|
||
|
L&C,
LLC
|
||
| |
|
|
| By: |
/s/
Xxxxxxxxxxx Xxxxxx
|
|
|
Xxxxxxxxxxx
Xxxxxx,
Manager
|
||
Signature
Page to Exchange Agreement
