AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is made
this ___ day of February, 2001, by and between NPC Holdings, Inc., a
publicly-held, fully reporting corporation incorporated in Nevada ("NPC");
Vulcan Minerals & Energy, Inc., a Texas corporation ("Vulcan"); and the persons
listed in Exhibit A-1 hereof who are the owners of record of all the issued and
outstanding stock of Vulcan who execute and deliver the Agreement ("Vulcan
Stockholders"), based on the following:
Recitals
NPC wishes to acquire all the issued and outstanding stock of Vulcan in
exchange for stock of NPC, in a transaction intended to qualify as a tax-free
exchange pursuant to section 368(a)(1)(B) of the Internal Revenue Code of 1986,
as amended. The parties intend for this Agreement to represent the terms and
conditions of such tax-free reorganization, which Agreement the parties hereby
adopt. However, neither party is seeking tax counsel or legal or accounting
opinions on whether the transaction qualifies for tax free treatment.
Agreement
Based on the stated premises, which are incorporated herein by
reference, and for and in consideration of the mutual covenants and agreements
hereinafter set forth, the mutual benefits to the parties to be derived
herefrom, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, it is hereby agreed as follows:
ARTICLE I
EXCHANGE OF STOCK
1.01 Exchange of Shares. On the terms and subject to the conditions
set forth in this Agreement, on the Closing Date (as defined in Section 1.05
hereof), the Vulcan Stockholders shall assign, transfer, and deliver to NPC,
free and clear of all liens, pledges, encumbrances, charges, restrictions, or
claims of any kind, nature, or description, all issued and outstanding shares of
common stock of Vulcan (the "Vulcan Shares") held by Vulcan Stockholders which
shares shall represent all issued and outstanding shares of Vulcan common stock,
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and NPC agrees to acquire such shares on such date by issuing and delivering in
exchange therefor an aggregate of 13,947,430 restricted shares of NPC common
stock, par value $0.001 per share, (the "NPC Common Stock"). Such shares of NPC
Common Stock shall be issued pro rata based on the number of Vulcan Shares held
and as set forth opposite the Vulcan Stockholder's respective names in Exhibit
A-1. All shares of NPC Common Stock to be issued and delivered pursuant to this
Agreement shall be appropriately adjusted to take into account any stock split,
stock dividend, reverse stock split, recapitalization, or similar change in the
NPC Common Stock which may occur between the date of the execution of this
Agreement and the Closing Date.
(a) Additional Shares. There shall be issued 500,000 restricted
shares of NPC Common Stock to Pacific Management Services, Inc.,
for services rendered to NPC and Vulcan.
(b) Registration of Shares. The shares set forth in Section 1.01(a),
shall have rights of registration, and Vulcan agrees to register
said shares, pursuant to the Registration Rights Agreement
attached hereto.
1.02 Delivery of Certificates by Vulcan Stockholders. The transfer of
Vulcan shares by the Vulcan Stockholders shall be effected by the delivery to
NPC at the Closing (as set forth in Section 1.05 hereof) of certificates
representing the transferred shares endorsed in blank or accompanied by stock
powers executed in blank, with all signatures medallion guaranteed and with all
necessary transfer taxes and other revenue stamps affixed and acquired at the
Vulcan Stockholders' expense.
1.03 Operation as Wholly-Owned Subsidiary. After giving effect to the
transaction contemplated hereby, NPC will own all the issued and outstanding
shares of Vulcan and Vulcan will be a wholly-owned subsidiary of NPC operating
under the name Vulcan, Inc. or such other name selected by the shareholders and
management of Vulcan.
1.04 Further Assurances. At the Closing and from time to time
thereafter, the Vulcan Stockholders shall execute such additional instruments
and take such other action as NPC may reasonably request, without undue cost to
the Vulcan Stockholders in order to more effectively sell, transfer, and assign
clear title and ownership in the Vulcan Shares to NPC .
1.05 Closing and Parties. The Closing contemplated hereby shall be held
at a mutually agreed upon time and place on or before March 9, 2001 or on
another date to be agreed to in writing by the parties (the "Closing Date'). The
Agreement may be closed at any time following approval by a majority of the
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shareholders of NPC Common Stock as set forth in Section 4.01 hereof and the
Vulcan Stockholders as set forth in Section 5.01. The Closing may be
accomplished by wire, express mail, overnight courier, conference telephone call
or as otherwise agreed to by the respective parties or their duly authorized
representatives.
1.06 Closing Events.
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(a) NPC Deliveries. Subject to fulfillment or waiver of the
conditions set forth in Article IV, NPC shall deliver to
Vulcan at Closing all the following:
(i) A certificate of good standing from the
Department of Commerce of the State of Nevada, issued as of a
date within ten days prior to the Closing Date, certifying
that NPC is in good standing as a corporation in the State of
Nevada;
(ii) Incumbency and specimen signature certificates
dated the Closing Date with respect to the officers of NPC
executing this Agreement and any other document delivered
pursuant hereto on behalf of NPC ;
(iii) Copies of the resolutions/consents of NPC's
board of directors and shareholder minutes or consents
authorizing the execution and performance of this Agreement
and the contemplated transactions, certified by the secretary
or an assistant secretary of NPC as of the Closing Date;
(iv) The certificate contemplated by Section 4.02,
duly executed by the chief executive officer of NPC;
(v) The certificate contemplated by Section 4.03,
dated the Closing Date, signed by the chief executive officer
of NPC;
(vii) Certificates for 13,947,430 shares of NPC
Common Stock in the names of the Vulcan Stockholders and in
the amounts set forth in Exhibit "A-1"; and
In addition to the above deliveries, NPC shall take all steps and
actions as Vulcan and Vulcan Stockholders may reasonably request or as
may otherwise be reasonably necessary to consummate the transactions
contemplated hereby.
(b) Vulcan Deliveries. Subject to fulfillment or waiver of
the conditions set forth in Article V, Vulcan and/or Vulcan
Stockholder's shall deliver to NPC at Closing all the following:
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(i) A certificate of good standing from the Secretary
of State of the State of Texas, issued as of a date within ten
days prior to the Closing Date certifying that Vulcan is in
good standing as a corporation in the State of Texas;
(ii) Incumbency and specimen signature certificates
dated the Closing Date with respect to the officers of Vulcan
executing this Agreement and any other document delivered
pursuant hereto on behalf of Vulcan;
(iii) Copies of resolutions/consents of the board of
directors and of the stockholders of Vulcan authorizing the
execution and performance of this Agreement and the
contemplated transactions, certified by the secretary or an
assistant secretary of Vulcan as of the Closing Date;
(iv) The certificate contemplated by Section 5.02,
executed by the chief operating officer of Vulcan; and
(v) The certificate contemplated by Section 5.03,
dated the Closing Date, signed by the chief operating officer
of Vulcan.
In addition to the above deliveries, Vulcan shall take all steps and
actions as NPC may reasonably request or as may otherwise be reasonably
necessary to consummate the transactions contemplated hereby.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES OF NPC
As an inducement to, and to obtain the reliance of Vulcan, NPC
represents and warrants as follows:
2.01 Organization.
(a) NPC is, and will be on the Closing, a corporation duly
organized, validly existing, and in good standing under the laws of the
State of Nevada and has the corporate power and is and will be duly
authorized, qualified, franchised, and licensed under all applicable
laws, regulations, ordinances, and orders of public authorities to own
all of its properties and assets and to carry on its business in all
material respects as it is now being conducted, and there are no other
jurisdictions in which it is not so qualified in which the character
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and location of the assets owned by it or the nature of the material
business transacted by it requires qualification, except where failure
to do so would not have a material adverse effect on its business,
operations, properties, assets or condition. The execution and delivery
of this Agreement does not, and the consummation of the transactions
contemplated by this Agreement in accordance with the terms hereof will
not, violate any provision of NPC's articles of incorporation or
bylaws, or other agreement to which it is a party or by which it is
bound.
2.02 Approval of Agreement. NPC has full power, authority, and legal
right and have taken, or will take, all action required by law, its articles of
incorporation, bylaws, and otherwise to execute and deliver this Agreement and
to consummate the transactions herein contemplated. The board of directors of
NPC has authorized and approved the execution, delivery, and performance of this
Agreement and the transactions contemplated hereby; subject to the approval of
the NPC shareholders and compliance with state and federal corporate and
securities laws.
2.03 Capitalization. The authorized capitalization of NPC consists of
100,000,000 shares of common stock, $0.001 par value, of which approximately
712,820 shares shall be issued and outstanding, prior to issuance of shares as
set forth in Section 1.01 of this Agreement. All issued and outstanding shares
of NPC are legally issued, fully paid, and nonassessable and not issued in
violation of the preemptive or other right of any person. There are no dividends
or other amounts due or payable with respect to any of the shares of capital
stock of NPC
2.04 Financial Statements.
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(a) Included in Schedule 2.04 or otherwise available from
EDGAR through the SEC's website, www.sec.gov, are the audited balance
sheet of NPC as of June 30, 2000, and the related statements of
operations, stockholders' equity (deficit), and cash flows for the
fiscal years ended June 30, 2000 and 1999, including the notes thereto,
and the accompanying report of the company's independent certified
public accountant.
(b) The financial statements of NPC delivered pursuant to
Section 2.04(a) have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the
periods involved as explained in the notes to such financial
statements. The NPC financial statements present fairly, in all
material respects, as of their respective dates, the financial position
of NPC. NPC did not have, as of the date of any such financial
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statements, except as and to the extent reflected or reserved against
therein, any liabilities or obligations (absolute or contingent) which
should be reflected therein in accordance with generally accepted
accounting principles, and all assets reflected therein presently
fairly the assets of NPC in accordance with generally accepted
accounting principles.
(c) NPC has filed or will file as the Closing Date its tax
returns required to be filed for its two most recent fiscal years. All
such returns and reports are accurate and correct in all material
respect. NPC has no material liabilities with respect to the payment of
any federal, state, county, local, or other taxes (including any
deficiencies, interest, or penalties) accrued for or applicable to the
period ended on the date of the most recent balance sheet of NPC,
except to the extent reflected on such balance sheet and all such dates
and years and periods prior thereto and for which NPC may at said date
have been liable in its own right or as transferee of the assets of, or
as successor to, any other corporation or entity, except for taxes
accrued but not yet due and payable, and to the best knowledge of NPC,
no deficiency assessment or proposed adjustment of any such tax return
is pending, proposed or contemplated. To the best knowledge of NPC,
none of such income tax returns has been examined or is currently being
examined by the Internal Revenue Service and no deficiency assessment
or proposed adjustment of any such return is pending, proposed or
contemplated. NPC has not made any election pursuant to the provisions
of any applicable tax laws (other than elections that relate solely to
methods of accounting, depreciation, or amortization) that would have a
material adverse affect on NPC, its financial condition, its business
as presently conducted or proposed to be conducted, or any of its
respective properties or material assets. There are no outstanding
agreements or waivers extending the statutory period of limitation
applicable to any tax return of NPC.
2.05 Outstanding Warrants and Options. At closing, NPC will have no
existing warrants or options, calls or commitments of any nature relating to the
authorized and unissued NPC Common Stock.
2.06 Information. The information concerning NPC set forth in this
Agreement is complete and accurate in all material respects and does not contain
any untrue statement of a material fact or omit to state a material fact
required to make the statements made, in light of the circumstances under which
they were made, not misleading. NPC shall cause the schedules delivered by it
pursuant hereto and the instruments delivered to Vulcan hereunder to be updated
after the date hereof up to and including the Closing Date.
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2.07 Absence of Certain Changes or Events. Except as set forth in this
Agreement or the schedules hereto, since the date of the most recent NPC balance
sheet described in Section 2.04 and included in the information referred to in
Section 2.06:
(a) There has not been (i) any material adverse change in the
business, operations, properties, level of inventory, assets, or
condition of NPC or (ii) any damage, destruction, or loss to NPC
(whether or not covered by insurance) materially and adversely
affecting the business, operations, properties, assets, or conditions
of NPC;
(b) NPC has not (i) amended its articles of incorporation or
bylaws; (ii) declared or made, or agreed to declare or make, any
payment of dividends or distributions of any assets of any kind
whatsoever to stockholders or purchased or redeemed, or agreed to
purchase or redeem, any of its capital stock; (iii) waived any rights
of value which in the aggregate are extraordinary or material
considering the business of NPC; (iv) made any material change in its
method of management, operation, or accounting; (v) entered into any
other material transactions; (vi) made any accrual or arrangement for
or payment of bonuses or special compensation of any kind or any
severance or termination pay to any present or former officer or
employee; (vii) increased the rate of compensation payable or to become
payable by it to any of its officers or directors or any of its
employees whose monthly compensation exceeds $1,000; or (viii) made any
increase in any profit-sharing, bonus, deferred compensation,
insurance, pension, retirement, or other employee benefit plan,
payment, or arrangement made to, for, or with its officers, directors,
or employees;
(c) NPC has not (i) granted or agreed to grant any options,
warrants, or other rights for its stocks, bonds, or other corporate
securities calling for the issuance thereof, (ii) borrowed or agreed to
borrow any funds or incurred, or become subject to, any material
obligation or liability (absolute or contingent) except liabilities
incurred in the ordinary course of business; (iii) paid any material
obligation or liability (absolute or contingent) other than current
liabilities reflected in or shown on the most recent NPC balance sheet
and current liabilities incurred since that date in the ordinary course
of business; (iv) sold or transferred, or agreed to sell or transfer,
any of its material assets, properties, or rights (except assets,
properties, or rights not used or useful in its business which, in the
aggregate have a value of less than $5,000 or canceled, or agreed to
cancel, any debts or claims (except debts and claims which in the
aggregate are of a value of less than $5,000); (v) made or permitted
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any amendment or termination of any contract, agreement, or license to
which it is a party if such amendment or termination is material,
considering the business of NPC; or (vi) issued, delivered, or agreed
to issue or deliver any stock, bonds, or other corporate securities
including debentures (whether authorized and unissued or held as
treasury stock); and
(d) To the best knowledge of NPC, it has not become subject to
any law or regulation which materially and adversely affects, or in the
future would be reasonably expected to adversely affect, the business,
operations, properties, assets, or condition of NPC.
2.08 Litigation and Proceedings. There are no material actions, suits,
or administrative or other proceedings pending or, to the knowledge of NPC,
threatened by or against NPC or adversely affecting NPC or its properties, at
law or in equity, before any court or other governmental agency or
instrumentality, domestic or foreign, or before any arbitrator of any kind. NPC
does not have any knowledge of any default on its part with respect to any
judgment, order, writ, injunction, decree, award, rule, or regulation of any
court, arbitrator, or governmental agency or instrumentality.
2.09 Compliance With Laws and Regulations. NPC has complied with all
applicable statutes and regulations of any federal, state, or other governmental
entity or agency thereof, except to the extent that noncompliance (i) could not
materially and adversely affect the business, operations, properties, assets, or
condition of NPC or (ii) could not result in the occurrence of any material
liability for NPC. To the best knowledge of NPC, the consummation of this
transaction will comply with all applicable statutes and regulations, subject to
the preparation and filing of any forms required by state and federal securities
laws.
2.10 Material Contract Defaults. NPC is not in default in any material
respect under the terms of any outstanding contract, agreement, lease, or other
commitment which is material to the business, operations, properties, assets, or
condition of NPC, and there is no event of default or other event which, with
notice or lapse of time or both, would constitute a default in any material
respect under any such contract, agreement, lease, or other commitment in
respect of which NPC has not taken adequate steps to prevent such a default from
occurring.
2.11 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any ten-n or provision of, or
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constitute an event of default under, any material indenture, mortgage, deed of
trust, or other material contract, agreement, or instrument to which NPC is a
party or to which any of its properties or operations are subject.
2.12 Subsidiary. NPC does not own, beneficially or of record, any
equity securities in any other entity. NPC does not have a predecessor as that
term is defined under generally accepted accounting principles or Regulation S-X
promulgated by the Securities and Exchange Commission,
2.13 NPC Schedules. NPC has delivered to Vulcan the following
schedules, which are collectively referred to as the "NPC Schedules" and which
consist of the following separate schedules dated as of the date of execution of
this Agreement, all certified by a duly authorized officer of NPC as complete,
true, and accurate:
(a) A schedule including copies of the articles of incorpora-
tion and bylaws of NPC in effect as of the date of this Agreement;
(b) A schedule containing copies of resolutions adopted by
the board of directors of NPC approving this Agreement and the trans-
actions herein contemplated;
(c) A schedule setting forth a description of any material
adverse change in the business, operations, property, inventory,
assets, or condition of NPC since the most recent NPC balance sheet,
required to be provided pursuant to Section 2.04 hereof,
(d) A schedule setting forth the financial statements required
pursuant to Section 2.04(a) hereof, and
(e) A schedule setting forth any other information, together
with any required copies of documents, required to be disclosed in the
NPC Schedules by Sections 2.01 through 2.12.
NPC shall cause the NPC Schedules and the instruments delivered to
Vulcan hereunder to be updated after the date hereof up to and including a
specified date not more than three business days prior to the Closing Date. Such
updated NPC Schedules, certified in the same manner as the original NPC
Schedules, shall be delivered prior to and as a condition precedent to the
obligation of Vulcan to close.
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ARTICLE III
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF VULCAN
As an inducement to, and to obtain the reliance of NPC, Vulcan
represents and warrants as follows:
3.01 Organization. Vulcan is, and will be on the Closing Date, a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Texas and has the corporate power and is and will be duly
authorized, qualified, franchised, and licensed under all applicable laws,
regulations, ordinances, and orders of public authorities to own all of its
properties and assets and to carry on its business in all material respects as
it is now being conducted, and there are no other jurisdictions in which it is
not so qualified in which the character and location of the assets owned by it
or the nature of the material business transacted by it requires qualification,
except where failure to do so would not have a material adverse effect on its
business, operations, properties, assets or condition of Vulcan. The execution
and delivery of this Agreement does not, and the consummation of the
transactions contemplated by this Agreement in accordance with the terms hereof
will not, violate any provision of Vulcan's articles of incorporation or bylaws,
or other material agreement to which it is a party or by which it is bound.
3.02 Approval of Agreement. Vulcan has full power, authority, and legal
right and has taken, or will take, all action required by law, its articles of
incorporation, bylaws, or otherwise to execute and deliver this Agreement and to
consummate the transactions herein contemplated. The board of directors of
Vulcan have authorized and approved the execution, delivery, and performance of
this Agreement and the transactions contemplated hereby; subject to the approval
of the Vulcan Stockholders and compliance with state and federal corporate and
securities laws.
3.03 Capitalization. The authorized capitalization of Vulcan consists
of 20,000,000 shares of common stock, $.01 par value, of which as of the date
hereof, 4,775,331 shares are issued and outstanding to 280 shareholders, and
5,000,000 shares of preferred stock, $.01 par value, of which as of the date
hereof, no shares are issued and outstanding. All issued and outstanding shares
of Vulcan are legally issued, fully paid, and nonassessable and not issued in
violation of the preemptive or other right of any person. All shareholders are
"accredited investors" and have supplied written representation to Vulcan of
such accredited status. There are no dividends or other amounts due or payable
with respect to any of the shares of capital stock of Vulcan.
3.04 Financial Statements.
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(a) Included in Schedule 3.04 are the unaudited financial
statements of Vulcan through the period ending September 30, 2000, and
the audited balance sheet of Vulcan as of December 31, 1999, and the
related statements of operations, stockholders' equity (deficit), and
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cash flows for the fiscal years ended December 31, 1999 and 1998,
including the notes thereto, and the accompanying report of the
company's independent certified public accountant. In addition, Vulcan
agrees that the audit of the financials for the year ended December 31,
2000 shall be completed by March 31, 2001.
(b) The audited unaudited financial statements delivered
pursuant to Section 3.04(a) have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved. The financial statements of Vulcan
present fairly, as of their respective dates, the financial position of
Vulcan. Vulcan did not have, as of the date of any such balance sheets,
except as and to the extent reflected or reserved against therein, any
liabilities or obligations (absolute or contingent) which should be
reflected in any financial statements or the notes thereto prepared in
accordance with generally accepted accounting principles, and all
assets reflected therein present fairly the assets of Vulcan, in
accordance with generally accepted accounting principles. The
statements of revenue and expenses and cash flows present fairly the
financial position and result of operations of Vulcan as of their
respective dates and for the respective periods covered thereby.
3.05 Outstanding Warrants and Options. Vulcan has no issued options,
calls, or commitments of any nature relating to the authorized and unissued
Vulcan Common Stock, other than certain warrants and/or options, which options
and warrants, once converted to stock, do not exceed 500,000 shares. Following
the closing of this Agreement, Vulcan may issue any warrants or options as it
deems fit.
3.06 Information. The information concerning Vulcan set forth in this
Agreement and in the schedules delivered by Vulcan pursuant hereto is complete
and accurate in all material respects and does not contain any untrue statement
of a material fact or omit to state a material fact required to make the
statements made, in light of the circumstances under which they were made, not
misleading. Vulcan shall cause the schedules delivered by Vulcan pursuant hereto
to NPC hereunder to be updated after the date hereof up to and including the
Closing Date.
3.07 Absence of Certain Changes or Events. Except as set forth in this
Agreement since the date of the most recent Vulcan balance sheet described in
Section 3.04 and included in the information referred to in Section 3.06:
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(a) There has not been (i) any material adverse change in the
business, operations, properties, level of inventory, assets, or
condition of Vulcan or (ii) any damage, destruction, or loss to Vulcan
materially and adversely affecting the business, operations,
properties, assets, or conditions of Vulcan.
(b) Vulcan has not (i) amended its articles of incorporation
or bylaws; (ii) declared or made, or agreed to declare or make, any
payment of dividends or distributions of any assets of any kind
whatsoever to stockholders or purchased or redeemed, or agreed to
purchase or redeem, any of its capital stock; (iii) waived any rights
of value which in the aggregate are extraordinary and material
considering the business of Vulcan; (iv) made any material change in
its method of accounting; (v) entered into any other material
transactions other dm those contemplated by this Agreement; (vi) made
any material accrual or material arrangement for or payment of bonuses
or special compensation of any kind or any severance or termination pay
to any present or former officer or employee; or (vii) made any
material increase in any profit-sharing, bonus, deferred compensation,
insurance, pension, retirement, or other employee benefit plan,
payment, or arrangement made to, for, or with their officers,
directors, or employees;
(c) Vulcan has not (i) granted or agreed to grant any options,
warrants, or other rights for its stocks, bonds, or other corporate
securities calling for the issuance thereof, (ii) borrowed or agreed to
borrow any funds or incurred, or become subject to, any material
obligation or liability (absolute or contingent) except liabilities
incurred in the ordinary course of business; (iii) paid any material
obligation or liability (absolute or contingent) other than current
liabilities reflected in or shown on the most recent Vulcan balance
sheet and current liabilities incurred since that date in the ordinary
course of business; (iv) sold or transferred, or agreed to sell or
transfer, any of its material assets, properties, or rights, or agreed
to cancel, any material debts or claims; (v) made or permitted any
amendment or termination of any contract, agreement, or license to
which it is a party if such amendment or termination is material,
considering the business of Vulcan; or (vi) issued, delivered, or
agreed to issue or deliver any stock, bonds, or other corporate
securities including debentures (whether authorized and unissued or
held as treasury stock); and
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(d) To the best knowledge of Vulcan, it has not become subject
to any law or regulation which materially and adversely affects, or in
the future would be reasonably expected to adversely affect, the
business, operations, properties, assets, or condition of Vulcan.
3.08 Title and Related Matters. Except as provided herein or disclosed
in the most recent Vulcan balance sheet and the notes thereto, Vulcan has good
and marketable title to all of its properties, inventory, interests in
properties, technology, whether patented or unpatented, including, but not
limited to the Vulcan technology, intellectual property, computer software, and
assets, which are reflected in the most recent Vulcan balance sheet or acquired
after that date (except properties, interests in properties, and assets sold or
otherwise disposed of since such date in the ordinary course of business), free
and clear of all mortgages, liens, pledges, charges, or encumbrances, except (i)
statutory liens or claims not yet delinquent; and (ii) such imperfections of
title and easements as do not, and will not, materially detract from, or
interfere with, the present or proposed use of the properties subject thereto or
affected thereby or otherwise materially impair present business operations on
such properties. To the best knowledge of Vulcan, its technology does not
infringe on the copyright, patent, trade secret, know-how, or other proprietary
right of any other person or entity and comprises all such rights necessary to
permit the operation of the business of Vulcan as now being conducted or as
contemplated.
3.09 Litigation and Proceedings. There are no material actions, suits,
or proceedings pending or, to the knowledge of Vulcan, threatened by or against
Vulcan or adversely affecting Vulcan, at law or in equity, before any court or
other governmental agency or instrumentality, domestic or foreign, or before any
arbitrator of any kind. Vulcan does not have any knowledge of any default on its
part with respect to any judgment, order, writ, injunction, decree, award, rule,
or regulation of any court, arbitrator, or governmental agency or
instrumentality.
3.10 Material Contract Defaults. Vulcan is not in default in any
material respect under the terms of any outstanding contract, agreement, lease,
or other commitment which is material to the business, operations, properties,
assets, or condition of Vulcan, and there is no event of default or other event
which, with notice or lapse of time or both, would constitute a default in any
material respect under any such contract, agreement, lease, or other commitment
in respect of which Vulcan has not taken adequate steps to prevent such a
default from occurring.
3.11 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
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constitute an event of default under, any material indenture, mortgage, deed of
trust. or other material contract, agreement, or instrument to which Vulcan is a
party or to which any of its properties or operations are subject.
3.12 Governmental Authorizations. Vulcan has all licenses, franchises,
permits, and other governmental authorizations that are legally required to
enable it to conduct its business in all material respects as conducted on the
date of this Agreement. Except for compliance with federal and state securities
and corporation laws, as hereinafter provided, no authorization, approval,
consent, or order of, or registration, declaration, or filing with, Any court or
other governmental body is required in connection with the execution and
delivery by Vulcan of this Agreement and the consummation by Vulcan of the
transactions contemplated hereby.
3.13 Compliance With Laws and Relations. Vulcan has complied with all
applicable statutes and regulations of any federal, state, or other governmental
entity or agency thereof, except to the extent that noncompliance would not
materially and adversely affect the business, operations, properties, assets, or
condition of Vulcan or except to the extent that noncompliance would not result
in the occurrence of any material liability for Vulcan. To the best knowledge of
Vulcan, the consummation of this transaction will comply with all applicable
statutes and regulations, subject to the preparation and filing of any forms
required by state and federal security laws.
3.14 Subsidiary. Vulcan does not own, beneficially or of record, any
equity securities in any other entity. Vulcan does not have a predecessor as
that term is defined under generally accepted accounting principles or
Regulation S-X promulgated by the Securities and Exchange Commission.
3.15 Vulcan Schedules. Vulcan has delivered to NPC the following
schedules, which are collectively referred to as the "Vulcan Schedules" and
which consist of the following separate schedules dated as of the date of
execution of this Agreement, and instruments and NPC as of such date, all
certified by the chief executive officer of Vulcan as complete, true, and
accurate:
(a) A schedule including copies of the articles of incorpora-
tion and bylaws of Vulcan and all amendments thereto in effect as of
the date of this Agreement;
(b) A schedule containing copies of resolutions adopted by the
board of directors of Vulcan approving this Agreement and the
transactions herein contemplated as referred to in Section 3.02;
14
(c) A schedule setting forth a description of any material
adverse change in the business, operations, property, inventory,
assets, or condition of Vulcan since the most recent Vulcan balance
sheet, required to be provided pursuant to Section 3.04 hereof,
(d) A schedule setting forth the financial statements required
pursuant to Section 3.04 (a) hereof, and
(e) A schedule setting forth any other information, together
with any required copies of documents, required to be disclosed in the
Vulcan Schedules by Sections 3.01 through 3.14.
Vulcan shall cause the Vulcan Schedules and the instruments delivered to NPC
hereunder to be updated after the date hereof up to and including a specified
date not more than three business days prior to the Closing Date. Such updated
Vulcan Schedules, certified in the same manner as the original Vulcan Schedules,
shall be delivered prior to and as a condition precedent to the obligation of
NPC to close.
ARTICLE IV
CONDITIONS PRECEDENT TO OBLIGATIONS OF VULCAN
The obligations of Vulcan under this Agreement are subject to the
following conditions:
4.01 Shareholder Approval.
--------------------
11 NPC shall call and hold a meeting of its shareholders, or obtain
the written consent of a majority of its shareholders, to approve
the transactions contemplated by this Agreement including the
acquisition of Vulcan through the issuance of NPC Common Stock
for all of the issued and outstanding Vulcan Shares, and the
change of name of NPC to "Vulcan Minerals & Energy, Inc." or such
other derivation thereof as may be agreed to by the board of
directors of Vulcan.
12 Vulcan shall call and hold a meeting of its shareholders, or
obtain the written consent of a majority of its shareholders, to
approve the transactions contemplated by this Agreement including
the exchange of NPC Common Stock for all of the issued and
outstanding Vulcan Shares.
15
4.02 Accuracy of Representations. The representations and warranties
made by NPC in this Agreement were true when made and shall be true at the
Closing Date with the same force and affect as if such representations and
warranties were made at and as of the Closing Date (except for changes therein
permitted by this Agreement), and NPC shall have performed or complied with all
covenants and conditions required by this Agreement to be performed or complied
with by NPC prior to or at the Closing. Vulcan shall be furnished with
certificates, signed by duly authorized officers of NPC and dated the Closing
Date, to the foregoing effect.
4.03 Officer's Certificates. Vulcan shall have been furnished with
certificates dated the Closing Date and signed by the duly authorized chief
executive officer of NPC to the effect that to such officer's best knowledge no
litigation, proceeding, investigation, or inquiry is pending or, to the best
knowledge of NPC threatened, which might result in an action to enjoin or
prevent the consummation of the transactions contemplated by this Agreement.
Furthermore, based on certificates of good standing, representations of
government agencies, and NPC's own documents and information, the certificate
shall represent, to the best knowledge of the officer, that:
(a) This Agreement has been duly approved by NPC's board of
directors and shareholders and has been duly executed and delivered in
the name and on behalf of NPC by its duly authorized officers pursuant
to, and in compliance with, authority granted by the board of directors
of NPC pursuant to a unanimous consent;
(b) There have been no material adverse changes in NPC up to
and including the date of the certificate;
(c) All conditions required by this Agreement have been met,
satisfied, or performed by NPC;
(d) All authorizations, consents, approvals, registrations,
and/or filings with any governmental body, agency, or court required in
connection with the execution and delivery of the documents by NPC have
been obtained and are in full force and effect or, if not required to
have been obtained, will be in full force and effect by such time as
may be required; and
(e) There is no material action, suit, proceeding, inquiry, or
investigation at law or in equity by any public board or body pending
or threatened against NPC, wherein an unfavorable decision, ruling, or
finding could have an adverse effect on the financial condition of NPC,
the operation of NPC, or the acquisition and reorganization
16
contemplated herein, or any agreement or instrument by which NPC is
bound or in any way contests the existence of NPC.
4.04 No Material Adverse Change. Prior to the Closing Date, there shall
not have occurred any material adverse change in the financial condition,
business, or operations of NPC, nor shall any event have occurred which, with
the lapse of time or the giving of notice, may cause or create any material
adverse change in the financial condition, business, or operations of NPC.
4.05 Good Standings. Vulcan shall have received a certificate of good
standing from the appropriate authority, dated as of the date within five days
prior to the Closing Date, certifying that NPC is in good standing as a
corporation in the State of Nevada.
4.06 Other Items. Vulcan shall have received such other documents,
certificates, or instruments relating to the transactions contemplated hereby as
Vulcan may reasonably request.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF NPC
The obligations of NPC under this Agreement are subject to the
following conditions: :
5.01 Shareholder Approval.
--------------------
1. NPC shall call and hold a meeting of its shareholders, or obtain
the written consent of a majority of its shareholders, to approve
the transactions contemplated by this Agreement including the
acquisition of Vulcan through the issuance of NPC Common Stock
for all of the issued and outstanding Vulcan Shares, and the
change of name of NPC to "Vulcan Minerals & Energy, Inc." or such
other derivation thereof as may be agreed to by the board of
directors of Vulcan. If NPC is unable to obtain shareholder
approval, NPC is under no further obligation to proceed with the
transactions contemplated under this Agreement.
2. Vulcan shall call and hold a meeting of its shareholders, or
obtain the written consent of a majority of its shareholders, to
approve the transactions contemplated by this Agreement including
the exchange of NPC Common Stock for all of the issued and
outstanding Vulcan Shares.
5.02 Accuracy of Representations. The representations and warranties
made by Vulcan and the Vulcan Stockholders in this Agreement were true when made
and shall be true at the Closing Date with the same force and affect as if such
17
representations and warranties were made at and as of the Closing Date (except
for changes therein permitted by this Agreement), and Vulcan shall have
performed or complied with all covenants and conditions required by this
Agreement to be performed or complied with by Vulcan prior to or at the Closing.
NPC shall be furnished with a certificate, signed by a duly authorized officer
of Vulcan and dated the Closing Date, to the foregoing effect.
5.03 Officer's Certificates. NPC shall have been furnished with
certificates dated the Closing Date and signed by the duly authorized chief
operating officer of Vulcan to the effect that no litigation, proceeding,
investigation, or inquiry is pending or, to the best knowledge of Vulcan,
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement. Furthermore,
based on certificates of good standing, representations of government agencies,
and Vulcan's own documents, the certificate shall represent, to the best
knowledge of the officer, that:
(a) This agreement has been duly approved by Vulcan's board of
directors and shareholders and has been duly executed and delivered in
the name and on behalf of Vulcan by its duly authorized officers
pursuant to, and in compliance with, authority granted by the board of
directors of Vulcan pursuant to a unanimous consent of its board of
directors and a majority vote of its stockholders;
(b) Except as provided or permitted herein, there have been no
material adverse changes in Vulcan up to and including the date of the
certificate.
(c) All authorizations, consents, approvals, registrations,
and/or filing with any governmental body, agency, or court required in
connection with the execution and delivery of the documents by Vulcan
have been obtained and are in full force and effect or, if not
required to have been obtained will be in full force and effect by
such time as may be required; and
(d) There is no material action, suit, proceeding, inquiry, or
investigation at law or in equity by any public board or body pending
or threatened against Vulcan, wherein an unfavorable decision, ruling,
or finding would have an adverse affect on the financial condition of
Vulcan, the operation of Vulcan, or the acquisition and reorganization
contemplated herein, or any material agreement or instrument by which
Vulcan is bound or would in any way contest the existence of Vulcan.
18
5.04 No Material Adverse Change. Prior to the Closing Date, there shall
not have occurred any material adverse change in the financial condition,
business or operations of Vulcan, nor shall any event have occurred which, with
the lapse of time or the giving of notice, may cause of create any material
adverse change in the financial condition, business, or operations of Vulcan.
5.05 Good Standing. NPC shall have received a certificate of good
standing from the appropriate authority, dated as of a date with five days prior
to the Closing Date, certifying that Vulcan is in good standing as a corporation
in the State of Texas.
5.06 Ownership Documentation. NPC shall have received documentation
verifying that all rights, title and interest in and to the trade names,
technology, software, intellectual property, manufacturing equipment, inventory
and assets related to the Vulcan products and technology shall be free and clear
of any and all liens, encumbrances, royalties and claims prior to Closing, other
than those documents in the schedules or financials delivered to NPC.
5.07 Other Items. NPC shall have received such further documents
certificates, or instruments relating to the transactions contemplated hereby as
NPC may reasonably request.
ARTICLE VI
SPECIAL COVENANTS
6.01 Activities of NPC and Vulcan
(a) From and after the date of this Agreement until the
Closing Date and except as set forth in the respective schedules to be
delivered by NPC and Vulcan pursuant hereto or as permitted or
contemplated by this Agreement, NPC and Vulcan will each:
(i) Carry on its business in substantially the same
manner as it has heretofore;
(ii) Maintain in full force and effect insurance
comparable 'in amount and in scope of coverage to that now
maintained by it;
(iii) Perform in all material respects all of its
obligations under material contracts, leases, and
instruments relating to or affecting its assets, properties,
and business;
(iv) Use its best efforts to maintain and preserve it
business organization intact, to retain its key employees,
and to maintain Its relationships with its material
suppliers and customers;
19
(v) Duly and timely file for all taxable periods
ending on or prior to the Closing Date all federal, state,
county, and local tax returns required to be filed by or on
behalf of such entity or for which such entity may be held
responsible and shall pay, or cause to pay, all taxes required
to be shown as due and payable on such returns, as well as all
installments of tax due and payable during the period
commencing on the date of this Agreement and ending on the
Closing Date.; and
(vi) Fully comply with and perform in all material
respects all obligations and duties imposed on it by all
federal and state laws and all rules, regulations, and orders
imposed by federal or state governmental authorities.
(b) From the date of this Agreement until the Closing Date,
NPC and Vulcan will not:
(i) Make any change in its articles of incorporation
or bylaws;
(ii) Enter into or amend any material contract,
agreement, or other instrument of any of the types described
in such party's schedules, except that a party may enter into
or amend any contract, agreement, or other instrument in the
ordinary course of business; and
(iii) Enter into any agreement for the sale of Vulcan
or NPC securities without the prior approval of the other
party.
(iv) Issue or cause to be issued any press
announcements or news releases other than those required by
law.
6.02 Access to Properties and Records. Until the Closing Date, Vulcan
and NPC will afford to the other party's officers and authorized representatives
full access to the properties, books, and records of the other party in order
that each party may have full opportunity to make such reasonable investigation
as it shall desire to make of the affairs of Vulcan or NPC and will furnish the
other party with such additional financial and other information as to the
business and properties of Vulcan or NPC as each party shall from time to time
reasonably request.
20
6.03 Indemnification by Vulcan. Vulcan will indemnify and hold harmless
NPC and its directors and officers, and each person, if any, who controls NPC
within the meaning of the Securities Act, from and against any and all losses,
claims, damages, expenses, liabilities, or actions to which any of them may
become subject under applicable law (including the Securities Act and the
Securities Exchange Act) and will reimburse them for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
claims or actions, whether or not resulting in liability, insofar as such
losses, claims, damages, expenses, liabilities, or actions arise out of or are
based upon any untrue statement or alleged untrue statement of material fact
contained in any application or statement filed with a governmental body or
arising out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein, or necessary in order to
make the statements therein not misleading, but only insofar as any such
statement or omission was made in reliance upon and in conformity with
information furnished in writing by Vulcan expressly for use therein. The
indemnity agreement contained in this Section 6.03 shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
NPC and shall survive the consummation of the transactions contemplated by this
Agreement for a period of six months. This indemnity agreement does not cover
any acts of NPC, its management, employees, or agents, prior to the date of this
Agreement.
6.04 Indemnification by NPC. NPC will indemnify and hold harmless
Vulcan, the Vulcan Stockholders, Vulcan's directors and officers, and each
person, if any, who controls Vulcan within the meaning of the Securities Act,
from and against any and all losses, claims, damages, expenses, liabilities, or
actions to which any of them may become subject under applicable law (including
the Securities Act and the Securities Exchange Act) and will reimburse them for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any claims or actions, whether or not resulting in
liability, insofar as such losses, claims, damages, expenses, liabilities, or
actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any application or statement filed
with a governmental body or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein,
or necessary in order to make the statements therein not misleading, but only
insofar as any such statement or omission was made in reliance upon and in
conformity with information furnished in writing by NPC expressly for use
therein. The indemnity agreement contained in this Section 6.04 shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of Vulcan and shall survive the consummation of the transactions
contemplated by this Agreement for a period of six months.
21
6.05 The Acquisition of NPC Common Stock. NPC and Vulcan understand and
agree that the consummation of this Agreement including the issuance of the NPC
Common Stock to Vulcan in exchange for the Vulcan Shares as contemplated hereby,
constitutes the offer and sale of securities under the Securities Act and
applicable state statutes. NPC and Vulcan agree that such transactions shall be
consummated in reliance on exemptions from the registration and prospectus
delivery requirements of such statutes that depend, among other items, on the
circumstances under which such securities are acquired.
(a) In order to provide documentation for reliance upon
exemptions from the registration and prospectus delivery requirements
for such transactions, the signing of this Agreement, by NPC and
Vulcan, and the delivery of appropriate separate representations shall
constitute the parties acceptance of, and concurrence in, the following
representations and warranties:
(i) The Vulcan Stockholders acknowledge that neither
the SEC nor the securities commission of any state or other
federal agency has made any determination as to the merits of
acquiring NPC Common Stock, and that this transaction involves
certain risks.
(ii) The Vulcan Stockholders have received and read
the Agreement and understand the risks related to the
consummation of the transactions herein contemplated.
(iii) Vulcan Stockholders have such knowledge and
experience in business and financial matters that they are
capable of evaluating each business.
(iv) The Vulcan Stockholders have been provided with
copies of all materials and information requested by them or
their representatives, including any information requested to
verify any information furnished (to the extent such
information is available or can be obtained without
unreasonable effort or expense), and- the parties have been
provided the opportunity for direct communication regarding
the transactions contemplated hereby.
(v) All information which the Vulcan Stockholders
have provided to NPC or their representatives concerning their
suitability and intent to hold shares in NPC following the
transactions contemplated hereby is complete, accurate, and
correct.
22
(vi) The Vulcan Stockholders have not offered or sold
any securities of NPC or interest in this Agreement and have
no present intention of dividing the NPC Common Stock or
Vulcan Shares to be received or the rights under this
Agreement with others or of reselling or otherwise disposing
of any portion of such stock or rights, either currently or
after the passage of a fixed or determinable period of time or
on the occurrence or nonoccurrence of any predetermined event
or circumstance.
(vii) The Vulcan Stockholders understand that the NPC
Common Stock has not been registered, but is being acquired by
reason of a specific exemption under the Securities Act as
well as under certain state statutes for transactions not
involving any public offering and that any disposition of the
subject NPC Common Stock may, under certain circumstances, be
inconsistent with this exemption and may make Vulcan or NPC an
"underwriter", within the meaning of the Securities Act. It is
understood that the definition of "underwriter" focuses upon
the concept of "distribution" and that any subsequent
disposition of the subject NPC Common Stock can only be
effected in transactions which are not considered
distributions. Generally, the term "distribution" is
considered synonymous with "public offering" or any other
offer or sale involving general solicitation or general
advertising. Under present law, in determining whether a
distribution occurs when securities are sold into the public
market, under certain circumstances one must consider the
availability of public information regarding tire issuer, a
holding period for the securities sufficient to assure that
the persons desiring to sell the securities without
registration first bear the economic risk of their investment,
and a limitation on the number of securities which the
stockholder is permitted to sell and on the manner of sale,
thereby reducing the potential impact of the sale on the
trading markets. These criteria are set forth specifically in
rule 144 promulgated under the Securities Act, and, after one
year after the date the NPC Common Stock or Vulcan Shares is
fully paid for, as calculated in accordance with rule 144(d),
sales of securities in reliance upon rule 144 can only be made
in limited amounts in accordance with the terms and conditions
of that rule. After two years from the date the securities are
fully paid for, as calculated in accordance with rule 144(d),
they can generally be sold without meeting those conditions,
provided the holder is not (and has not been for the preceding
three months) an affiliate of the issuer.
23
(viii) The Vulcan Stockholders acknowledge that the
shares of NPC Common Stock , must be held and may not be sold,
transferred, or otherwise disposed of for value unless they
are subsequently registered under the Securities Act or an
exemption from such registration is available. Other than as
set forth herein, NPC is not under any obligation to register
the NPC Common Stock under the Securities Act. If rule 144 is
available after one year and prior to two years following the
date the shares are fully paid for, only routine sales of such
NPC Common Stock in limited amounts can be made in reliance
upon rule 144 in accordance with the terms and conditions of
that rule. NPC is not under any obligation to make rule 144
available except as set forth in this Agreement and in the
event rule 144 is not available, compliance with Regulation A
or some other disclosure exemption may be required before
Vulcan Stockholders can sell, transfer, or otherwise dispose
of such NPC Common Stock without registration under the
Securities Act. Subject to compliance with federal and state
securities laws, NPC' registrar and transfer agent will
maintain a stop transfer order against the registration of
transfer of the NPC Common Stock held by Vulcan Stockholders
and the certificates representing the NPC Common Stock will
bear a legend in substantially the following form so
restricting the sale of such securities:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") AND ARE "RESTRICTED
SECURITIES" WITHIN THE MEANING OF RULE 144 PROMULGATED
UNDER THE SECURITIES ACT. THE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED
WITHOUT COMPLYING WITH RULE 144 IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION OR OTHER COMPLIANCE UNDER THE
SECURITIES ACT.
(ix) Subject to compliance with federal and state
securities laws, NPC may refuse to register further transfers
or resales of the NPC Common Stock in the absence of
compliance with rule 144 unless the Vulcan Stockholders
furnish NPC with an opinion of counsel reasonably acceptable
to NPC stating that the transfer is proper. Further, unless
such opinion states that the shares of NPC Common Stock are
free of any restrictions under the Securities Act, NPC may
refuse to transfer the securities to any transferee who does
not furnish in writing to NPC the same representations and
agree to the same conditions with respect to such NPC Common
24
Stock as set forth herein. NPC may also refuse to transfer the
NPC Common Stock if any circumstances are present reasonably
indicating that the transferee's representations are not
accurate.
(b) In connection with the transaction contemplated by this
Agreement, Vulcan and NPC shall each file, with the assistance of the
other and their respective legal counsel, such notices. applications,
reports, or other instruments as may be deemed by them to be necessary
or appropriate in an effort to document reliance on such exemptions,
and the appropriate regulatory authority in the states where the Vulcan
Stockholders reside unless an exemption requiring no filing is
available in such jurisdictions, all to the extent and in the manner as
may be deemed by such parties to be appropriate.
(c) In order to more fully document reliance on the exemptions
as provided herein, Vulcan, the Vulcan Stockholders, and NPC shall
execute and deliver to the other, at or prior to the Closing, such
further letters of representation, acknowledgment, suitability, or the
like as NPC or Vulcan and their respective counsel may reasonably
request in connection with reliance on exemptions from registration
under such securities laws.
(d) The Vulcan Stockholders acknowledge that the basis for
relying on exemptions from registration or qualifications are factual,
depending on the conduct of the various parties, and that no legal
opinion or other assurance will be required or given to the effect that
the transactions contemplated hereby are in fact exempt from
registration or qualification.
6.06 NPC Liabilities. Immediately prior to the Closing Date, NPC shall
have no material assets and no liabilities in excess of $500, and all expenses
related to this Agreement or otherwise shall have been paid.
6.07 Securities Filings. NPC shall be responsible for the preparation
of a Form 8-K filing with the Securities and Exchange Commission and Vulcan
shall be responsible for a filing of consolidated audited financials in a
separate 8-K filing within 45 days thereafter, and will be responsible for any
and all filings in any jurisdiction where its shareholders reside which would
require a filing with a governmental agency as a result of the transactions
contemplated in this Agreement.
25
6.08 Sales of Securities Under Rule 144, If Applicable.
-------------------------------------------------
(a) NPC will use its best efforts to at all times satisfy the
current public information requirements of rule 144 promulgated under
the Securities Act so that its shareholders can sell restricted
securities that have been held for one year or more or such other
restricted period as required by rule 144 as it is from time to tune
amended.
(b) Upon being informed in writing by any person holding
restricted stock of NPC as of the date of this Agreement that such
person intends to sell any shares under rule 144 promulgated under the
Securities Act (including any rule adopted in substitution or
replacement thereof), NPC will certify in writing to such person that
it is in compliance with rule 144 current public information
requirement to enable such person to sell such person's restricted
stock under rule 144, as may be applicable under the circumstances.
(c) If any certificate representing any such restricted stock
is presented to NPC's transfer agent for registration or transfer in
connection with any sales theretofore made under rule 144, provided
such certificate is duly endorsed for transfer by the appropriate
person(s) or accompanied by a separate stock power duly executed by the
appropriate person(s) in each case with reasonable assurances that such
endorsements are genuine and effective, and is accompanied by an
opinion of counsel satisfactory to NPC and its counsel that such
transfer has complied with the requirements of rule 144, as the case
may be, NPC will promptly instruct its transfer agent to register such
transfer and to issue one or more new certificates representing such
shares to the transferee and, if appropriate under the provisions of
rule 144. As the case may be, free of any stop transfer order or
restrictive legend. The provisions of this Section 6.08 shall survive
the Closing and the consummation of the transactions contemplated by
this Agreement for a period of two years.
(d) The shareholders of NPC as of the date of this Agreement,
as well as those receiving NPC Common Stock pursuant to this Agreement,
are intended third-party beneficiaries of this Section 6.08.
6.09 New Board of Directors and Officers. At the time of closing, the
current board of directors and officers of NPC shall resign and in their place
nominees of Vulcan shall be appointed, subject to the approval of the
suitability and qualifications of such nominees.
6.10 Capitalization. For a period of twenty-four months from the
Closing Date, NPC will not engage in any reverse split of its issued and
outstanding Common Stock, without the prior written approval of the holders of a
majority in interest of the issued and outstanding NPC Common Stock on the date
26
immediately prior to the closing of this Agreement, which approval shall be
granted on the condition that all shares issued by NPC pursuant to Section
1.01(a) of this Agreement, and all shares issued by NPC within six months prior
to the closing of this Agreement, shall remain undiluted by any reverse split
within said twenty-four month period. Notwithstanding the foregoing, any
proposed reverse split within said period of twenty-four months from the Closing
Date shall be no more than one, two-for-one reverse split.
ARTICLE VII
MISCELLANEOUS
7.01 Brokers. Except as provided herein, NPC and Vulcan agree that
there were no finders or brokers involved in bringing the parties together or
who were instrumental in the negotiation, execution, or consummation of this
Agreement other than those previously disclosed. Further, NPC and Vulcan each
agree to indemnify the other against any claim by any third person for any
commission, brokerage, or finder's fee or other payment with respect to this
Agreement or the transactions contemplated hereby based on any alleged agreement
or understanding between such party and such third person, whether express or
implied, from the actions of such party. The covenants set forth in this section
shall survive the Closing Date and the consummation of the transactions herein
contemplated.
7.02 No Representation Regarding Tax Treatment. No representation or
warranty is being made by any party to any other regarding the treatment of this
transaction for federal or state income taxation. Each party has relied
exclusively on its own legal, accounting, and other tax adviser regarding the
treatment of this transaction for federal and state income taxes and on no
representation, warranty, or assurance from any other party or such other
party's legal, accounting, or other adviser.
7.03 Governing Law. This Agreement shall be governed by, enforced and
construed under and in accordance with the laws of the State of Nevada.
7.04 Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if personally delivered, if sent by
facsimile or telecopy transmission or other electronic communication confirmed
by registered or certified mail, postage prepaid, or if sent by prepaid
overnight courier addressed as follows:
27
If to NPC., to: If to Vulcan, to:
Kelly Adams, President John N. Ehrman, President
NPC Holdings, Inc. Vulcan Minerals & Energy, Inc..
4685 S. Highland Dr, Ste 202 650 North Sam Houston Pkwy. E, Suite 500
Salt Lake City, UT 84117 Houston, TX 77060
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices, hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered or sent by facsimile or
telecopy transmission or other electronic communication, or one day after the
date so sent by overnight courier.
7.05 Attorney's Fees. In the event that any party institutes any action
or suit to enforce this Agreement or to secure relief from any default hereunder
or breach hereof, the breaching party or parties shall reimburse the
nonbreaching party or parties for all costs, including reasonable attorneys'
fees, incurred in connection therewith and in enforcing or collecting any
judgment rendered therein.
7.06 Schedules; Knowledge. Whenever in any section of this Agreement
reference is made to information set forth in the schedules provided by NPC or
Vulcan such reference is to information specifically set forth in such schedules
and clearly marked to identify the section of this Agreement to which the
information relates. Whenever any representation is made to the "knowledge" of
any party, it shall be deemed to be a representation that no officer or director
of such party, after reasonable investigation, has any knowledge of such
matters.
7.07 Entire Agreement. This Agreement represents the entire agreement
between the parties relating to the subject matter hereof. All previous
agreements between the parties, whether written or oral, have been merged into
this Agreement. This Agreement alone fully and completely expresses the
agreement of the parties relating to the subject matter hereof. There are no
other courses of dealing, understandings, agreements, representations, or
warranties, written or oral, except as set forth herein.
7.08 Survival, Termination. The representations, warranties, and
covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for a period of six months
from the Closing Date, unless otherwise provided herein.
7.09 Counterparts; Facsimile. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original and all of
which taken together shall be but a single instrument. Facsimile signatures
shall constitute original signatures, and shall be followed by delivery of
original signatures.
28
7.10 Amendment or Waiver. Every right and remedy provided herein shall
be cumulative with every other right and remedy, whether conferred herein, at
law, or in equity, and such remedies may be enforced concurrently, and no waiver
by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may be amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance thereof may be extended by a
writing signed by the party or parties for whose benefit the provision is
intended.
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly authorized,
as of the date first above written.
NPC Holdings, Inc. Vulcan Minerals & Energy, Inc.
a Nevada corporation a Texas corporation
By: /s/ Kelly Adams By: /s/ John N. Ehrman
---------------------- --------------------------
Kelly Adams, President John N. Ehrman, President
STATE OF UTAH )
ss.
COUNTY OF SALT LAKE )
On this ____ day of February, 2001, personally appeared before me Kelly
Adams, whose identity is personally known to me and who by me duly sworn, did
say that he is the President of NPC Holdings, Inc. and that said document was
signed by her of behalf of said corporations by authority of their bylaws, and
said Kelly Adams acknowledged to me that said corporation executed the same.
-----------------------------------
NOTARY PUBLIC
STATE OF TEXAS )
ss.
COUNTY OF____________ )
On this ____ day of February, 2001 personally appeared before me John
N. Ehrman, whose identity is personally known to me and who by me duly sworn,
did say that he is the President of Vulcan Minerals & Energy, Inc. and that said
document was signed by him on behalf of said corporation by authority of its
bylaws, and said acknowledged to me that said corporation executed the same.
-----------------------------------
NOTARY PUBLIC
29
EXHIBIT A-1
Vulcan Minerals & Energy, Inc.
List of Shareholders
Number of Number of NPC
Vulcan Shares Shares to be Received
Name of Shareholder Owned in Exchange
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see proxy schedule attached
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