SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported:
April 4, 2001
LOGISTICS MANAGEMENT RESOURCES, INC.
(Exact name of Registrant as specified in its Charter)
COLORADO 33-9640 LA 68-0133692
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(State or other jurisdiction (Commission (IRS Employer
diction of incorporation) File Number) Identification
Number)
10602 Timberwood Circle
Lexington, Kentucky 40223
(Address of principal executive office) (Zip Code)
Registrant's telephone number including area code: (502) 339-4000
U.S. TRUCKING, INC.
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(Former name and former address, as changed since last report)
Exhibit Index
Exhibit
99.1 Stock Purchase Agreement (with Exhibit)
99.2 Press Release dated March 30, 2001
Commission File Number 33-9640-LA
Item 3. Other Events
On March 30, 2001, the Company purchased all of the issued and
outstanding stock of Trans-Logistics, Inc. a Florida corporation. The Company
purchased one hundred percent of Trans-Logistics issued and outstanding common
stock at the price of $80,000, plus, four times Trans-Logistics' gross brokerage
commissions for the period of October 1, 2001 to December 31, 2001, plus, any
accounts receivable (after adjusting for accounts payable) less any payments by
the company of the assumption of liabilities with Atech Commercial Corp. in
excess of $120,000. The consideration shall be paid by the transfer of $40,000
in cash, 18,000 shares of the Company's common stock (which must be registered
for sale on or before June 30, 2001), the transfer of stock of the Company's
common stock no later than April 15, July 15 and October 15, 2001 equal to the
gross brokerage commission for those respective quarters and the balance of the
purchase price shall be paid after an audit of Trans-logistics for the 2001
fiscal year and paid in shares of the Company's common stock
Item 7(c). Exhibits
99.1 Stock Purchase Agreement (with Exhibits)
99.2 Press Release dated March 30, 2001.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
LOGISTICS MANAGEMENT RESOURCES, INC.
Dated: April 11, 2001
By: /s/ Danny L. Pixler
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Name: Danny L. Pixler
Title: President
Friday, March 30, 2001 09:42 AM ET
LOUISVILLE, Ky.--(BUSINESS WIRE)--March 30, 2001--Logistics Management
Resources, Inc. (OTC BB:LMRI), a holding company focused on acquiring and
managing non-asset based transportation logistics and human resource companies,
today announced that it has secured a working capital facility in the amount of
$2 million.
Additionally, the company has also received a $1 million equity investment.
Commenting on the announcement, Logistics Management Resource's President and
Chief Executive Officer Dan L. Pixler, said, "The working capital facility
allows us to finance current operations and execute our plans for growth. The
equity investment will ensure the completion of anticipated acquisitions."
This increase in working capital has been another event in a series since the
recent reorganization of Logistics Management Resources, Inc. Other events
include a name change, a symbol change, the engagement of a sound regional
accounting firm, the retention of a robust financial consultant, and the
completion of its first acquisition of the year.
Pixler concluded, "We are on a solid course to profitability and returning value
to our shareholders."
Statements in this news release that relate to future plans, financial results
or projections, events or performance are forward looking statements within the
meaning of Section 27A of the Securities Act of 1933, as amended, and Section
21E of the Securities Exchange Act of 1934, as amended. While these statements
are made to convey to the public the Company's progress, business opportunities
and growth prospects, readers are cautioned that such forward-looking statements
represent the management's opinion. Where management believes such
representations to be true and accurate based on information available to the
Company at this time, actual results may differ materially from those described.
In addition to the matters described in this news release, risk factors listed
from time to time in the Company's SEC reports and filings, including, but not
limited to, its report on Form 10-QSB for the quarter ended Sept. 30, 2000, and
its report on Form 10-KSB for the year ended Dec. 31, 1999, may affect the
results achieved by the Company.
CONTACT: Press:
Logistics Management Resources, Louisville
Daniel Pixler, 502/339-4000
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered
into as of January 1, 2001 by and between Logistics Management Resources, Inc.,
a Colorado corporation ("Buyer"), Trans-logistics, Inc., a Florida corporation
(the "Company"), CHRISTINE A. OTTEN (the "Stockholder") and Allan Marshall.
RECITALS
A. Buyer desires to purchase from Stockholder and Stockholder desires
to sell to Buyer 100% of the issued and outstanding shares of capital stock (the
"Shares") of the Company;
B. It is desired that the sale of the Shares by Stockholder to Buyer be
subject to the terms and conditions of this Agreement.
AGREEMENT
In consideration of the provisions contained in this Agreement and with
reference to the foregoing recitals, Buyer and Stockholder agree as follows:
ARTICLE 1
PURCHASE AND SALE OF STOCK
1.1 Sale of Stock. Stockholder agrees to sell, and Buyer agrees to
purchase, subject to the terms and conditions set forth in this Agreement, the
Shares, which Shares collectively represent 100% of the issued and outstanding
shares of the capital stock of the Company.
1.2 Purchase Price. The purchase price for the Shares shall be the
product of four times the gross brokerage commissions of the Company (brokerage
fees minus cost of transportation) for the period October 1, 2001 through
December 31, 2001 (the "Enterprise Value"), plus $80,000, plus the value of any
receivables owned by the Company immediately prior to the Closing Date (which
amount is agreed to be not less than $230,000), minus the aggregate value of any
Liabilities of the Company prior to the Closing Date, minus the amount by which
the cost of the Company's performance of its obligations under the Assignment
and Assumption Agreement with Atech Commercial Corp. dated the date hereof
exceed $120,000 (the "Purchase Price"). For purposes of this Agreement,
"Liabilities" shall mean all debts, trade payables, employee salaries, the pro
rata portion of all estimated tax liabilities, and accrued vacation and sick
leave, or other liabilities or obligations of any kind of the Company
immediately prior to the Closing Date.
1.3 Form of Consideration. The Purchase Price shall be paid as follows:
* delivery of 18,000,000 shares ("USTK Shares") of U.S. Trucking, Inc.
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(appropriately adjusted in the event of any stock split effected after
the date hereof) (the "Stock Consideration") as promptly as
practicable after the Closing Date, but in no event later than 45 days
thereafter (for purposes hereof the Stock Consideration shall be
deemed to have a value of $180,000). Buyer shall register the
foregoing shares for public sale not later than June 30, 2001.
* $40,000 as promptly as possible after the Closing Date in readily
available funds
* the balance, in the discretion of Buyer, in cash and/or free trading
USTK Shares. The balance of the Purchase Price shall be paid to
Stockholder as follows. Not later than April 15, July 15 and October
15, 2001 Buyer shall pay to Stockholder an amount equal to the gross
brokerage commissions for the immediately preceding fiscal quarter
(the "Quarterly Payments"). The final payment of the Purchase Price
(the "Final Payment") shall be paid as promptly as possible after the
Purchase Price is finally determined in connection with an audit of
the Company for fiscal 2001. The value of the USTK Shares for
valuation purposes shall be the average closing asking price of the
USTK Shares on the principal securities exchange or quotation system
for USTK Shares for, with respect to a Quarterly Payment the 15
trading days immediately preceding the respective payment date, and
with respect to the Final Payment any 20 consecutive trading day
period chosen by the Stockholder commencing on January 15, 2002 and
ending Friday of the week before the week in which the Additional
Stock Consideration is delivered to Stockholder, in each case
discounted by 25%. In the event Buyer shall have paid Stockholder in
excess of the Purchase Price, upon the demand of Stockholder shall
remit to Buyer the excess Purchase Price in the manner set forth in
the second paragraph of Section 1.4.
For purposes hereof, "free trading" USTK Shares shall mean such shares either
having been subject of a registration under the Securities Act of 1933, as
amended or exempt from registration under Rule 144 thereunder.
1.4 Reduction of Purchase Price. If Allan Marshall's employment with
the Company shall be terminated voluntarily by Marshall (except with "Good
Cause") or by the Company with "cause" (as defined in the employment agreement
between Marshall and the Company or Buyer, as the case may be), prior to the
third anniversary of the Closing Date, the Purchase Price shall be reduced (but
not increased) by revising the Enterprise Value component of the Purchase Price
to an amount equal to the gross brokerage commissions of the Company during the
period from the Closing Date through such termination of employment divided by
two. For purposes hereof, "Good Cause" shall mean and include the taking of any
action, or failure to take any action, which yields a "constructive termination"
of the employment of
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Marshall.
If the Purchase Price has already been delivered to the Stockholder
upon a determination that the Enterprise Value shall be reduced or has been paid
in Quarterly Payments in an amount in excess of the Purchase Price as finally
determined, the Stockholder shall promptly return to Buyer the Purchase Price
allocable to the reduced Enterprise Valuation component or excess Purchase
Price, as the case may be, provided that they shall have the right to elect to
deliver either cash or USTK Shares still held by them in payment of the Purchase
Price (as determined by the records of the USTK transfer agent) valued at the
higher of the value accorded them in determining their value for payment of the
Purchase Price or the then current market value, which current value shall be
the average closing bid price for the 20 trading days immediately preceding the
third day prior to delivery of the USTK Shares.
1.5 Closing, Pledge. At the Closing the Stockholder shall surrender to
Buyer all of the outstanding certificates theretofore representing shares of
Company Common Stock in exchange for the Purchase Price payable to her at
Closing as provided for herein, provided that the parties agree that such shares
shall be held by Seller pursuant to a Pledge Agreement to secure Buyer's
obligations hereunder.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF
THE STOCKHOLDER
The Stockholder and Allan Marshall, jointly and severally (except in
the case of a reference in this Article to the business, affairs or status of a
Stockholder, in which case each such Stockholder shall be deemed to make such
representation solely with respect to himself), represent and warrant to Buyer
as follows:
2.1 Organization and Standing. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the state
of Florida, is qualified as a foreign corporation in good standing under the
laws all other jurisdictions where the failure to be so qualified could have a
material adverse effect on the Company jurisdictions. The copies of the
Company's Articles of Incorporation, as amended, (including any certificates
designating the powers, designation, rights and preferences of the Company's
capital stock) and its bylaws, as previously delivered to counsel to Buyer, are
true, complete and correct.
2.2 Subsidiaries. The Company does not (I) own of record or
beneficially, directly or indirectly, (A) any shares of capital stock or
securities convertible into capital stock of any other corporation or (B) any
participating interest in any partnership, joint venture or other non- corporate
business enterprise or (ii) control, directly or indirectly, any other entity.
2.3 Capitalization. The Company has authorized capital stock consisting
solely of 1,000 shares of common stock, $.10 par value, 500 of which shares are
issued and outstanding (the "Shares") and owned of record and beneficially by
Stockholder.
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All of the issued and outstanding shares of capital stock of the
Company are validly issued, fully paid and nonassessable, and such shares have
been so issued in full compliance with all federal and state securities laws.
There are no outstanding options, subscriptions, convertible securities,
warrants, preemptive rights, rights of first refusal, proxies, voting
agreements, restrictions (other than restrictions on transfer imposed under
federal or state securities laws) or agreements or understandings of any
character (contingent or otherwise) which restrict or relate to the voting or
transfer of, require the issuance, sale, purchase or redemption of, or otherwise
relate to, such securities.
2.4 Title to Shares, Authorizations.
(a) Stockholder is the owner, beneficially and of record, of
the Shares free and clear of all liens, encumbrances, security agreements,
equities, options, claims, charges, and restrictions of any kind, other than
restrictions on transfer imposed under federal or state securities laws.
Stockholder is a registered owner of the Shares registered under his name in the
stock record books of the Company and, assuming the Buyer purchases the Shares
for value in good faith and without notice of any adverse claim, will acquire
all the rights of the Stockholder in the Shares free of any adverse claim, any
lien in favor of the Company, and any restrictions on transfer imposed by the
Company;
(b) The Company and the Stockholder have full power, legal
capacity and authority to execute and deliver this Agreement and to carry out
their obligations hereunder and thereunder, without obtaining the consent or
approval of any other person or governmental authority. The execution, delivery
and performance of this Agreement by the Company have been duly authorized by
all necessary corporate action on the part of the Company;
(c) This Agreement has been duly and validly executed and
delivered by the Company and the Stockholder and constitutes a valid and binding
Agreement of the Company and the Stockholder and is enforceable in accordance
with its terms; and
2.5 Financial Information. The Profit and Loss statement and Balance
Sheet for the period September 1, 2000 through December 25, 2000 delivered to
Buyer fairly present the results of operations and financial condition of the
Company for such period and as of such date. The Company has no actual, accrued,
or contingent liabilities other than as reflected on the Balance Sheet, and
provided further that prior to the Closing the Company shall have satisfied all
its obligations to Atech Commercial Corp., which obligations amount to
approximately $125,000.
2.6 No Adverse Changes. [deleted]
2.7 Taxes. The Company has filed within the time and manner prescribed
by law all foreign, federal, state, county and local income, gross receipts,
excise, property, sales, use, transfer, employment and other tax returns or
reports which are required to be filed by, or with respect to, it and such
returns or reports are true and correct in all material respects. The
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Company has paid all taxes, interest, penalties, assessments or deficiencies
shown as due and payable on such reports. The charges, accruals, and reserves
for unpaid taxes on the books of the Company, are sufficient in all respects for
the payment of all unpaid federal, foreign, state, county and local taxes of the
Company accrued for or applicable to all periods ended on or before that date.
The Company has withheld or collected from each payment made to each of its
employees, the amount of all taxes, including, but not limited to, federal
income taxes, Federal Insurance Contribution Act taxes and Federal Unemployment
Tax Act taxes, required to be withheld or collected therefrom, and has paid the
same to the proper tax receiving officers of authorized depositaries. There are
no outstanding waivers or extensions of time with respect to the assessment or
audit of any tax or tax return of the Company, or claims pending or matters
under discussion with any taxing authority with respect to any tax liability of
the Company.
2.8 Compliance with Laws. The Company has complied with all applicable
laws and regulations, including without limitation, zoning laws and
environmental laws and regulations, and has not been cited for any violation of
any such law or regulation. The Company has not commenced, and the Company has
not received notice of the commencement of, any proceeding that would affect the
present zoning classification of any property owned or leased by the Company.
2.9 List and Status of Properties, Contracts and Other Data. Schedule
2.9 [consisting of Schedules 2.9 (I) through (vii)] sets forth the following:
(I) (A) [deleted]
(B) a complete and accurate listing and location of each item of
personal property owned by, in the possession of, or used by the Company and
having a book value as of such date of at least Two Hundred Dollars ($200.00)
and each item leased by the Company indicating the name of lessor and
termination dates and renewal conditions of each lease. Such real and personal
property constitute all such property necessary for the conduct by the Company
of its business as presently conducted.
(ii) [deleted]
(iii) a listing of all contracts to which the Company is a
party or by which it is bound and all contracts to which a Stockholder is a
party or by which they are bound which may have any effect upon the Company or
its business.
Each of the contracts and agreements listed or described in Schedule
2.9 is in full force and effect, and except as set forth in such Schedule, there
exists no event of noncompliance, default or event of default by the Company, or
to the best of Company's and Stockholder's knowledge, any other party thereto,
or any event, occurrence, condition or act (including the transactions
contemplated herein), which, with the giving of notice, the lapse of time, or
both, would become a default or event of default thereunder, which would
constitute an event of noncompliance which would allow a party thereto to
require acceleration of performance
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thereunder by the Company, or which would result in the creation of any material
lien, charge, or encumbrance upon any assets of the Company. The Company has not
received notice from any other party that such other party claims the Company to
be in noncompliance or default under the contract concerned, or intends, either
based on a claimed default by the Company or based on a claimed right to do so
in the absence of default by the Company, to suspend, cancel, or terminate such
contract prior to the normal date of expiration set forth therein. All such
agreements were entered into on an arm's length basis. The Company has caused to
be made available for inspection and copying by Buyer and its advisers true,
complete and correct copies of all documents (including all amendments,
supplements, extensions and modifications) referred to in this Article II or in
any Schedule attached hereto.
(iv) [delete]
(v) with respect to the Company, a list of all bank accounts,
safe deposit boxes and credit card charge accounts; together with the names of
the individuals authorized to draw or charge thereon, and with respect to bank
accounts the approximate balances thereof, all restrictions or limitations as to
withdrawal (except for time restrictions applicable to time certificates of
deposit), and a list of certificates of deposit and other debt instruments
issued by banks, governments or other obligors.
2.10 Title to Properties, Absence of Liens and Encumbrances. The
Company has good and marketable title to all of its properties and assets used
in its business or owned by it, whether real, personal, tangible or intangible
(except for real properties and other assets held pursuant to leases as
described in Schedule 2.9, free and clear of all mortgages, liens, pledges,
easements, covenants, conditions, restrictions; claims and encumbrances. The
Company has possession of all assets and properties owned or leased by it. None
of the operations of the Company on such leased real property is in violation of
any applicable zoning requirement or classification, environmental statute,
building code, pollution control ordinance or statute or any other applicable
law, ordinance, regulation, order or requirement relating to such properties or
to such operations. No party has commenced, nor has the Company received notice
of the commencement of, any proceeding that would affect the present zoning
classification of any property owned or leased by the Company. No portion of the
Company's leased real property has been condemned, requisitioned or taken by any
governmental authority, and, to the best of the Company's knowledge, no such
action is threatened. Subject to the terms of its leases, the Company has the
right to quiet enjoyment of all its leased real property for the full term of
each lease and any renewal option. The Company has all rights of ingress and
egress necessary for all operations conducted by it.
2.11 Condition of Assets. [deleted]
2.12 Accounts Receivable. All accounts receivable of the Company
represent valid sales in the ordinary course of business, and are current and
collectible in the ordinary course of business.
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2.13 [deleted]
2.14 Licenses and Permits. The Company has all licenses, permits and
other authorizations (collectively "Licenses") required for the conduct of its
business as presently conducted; all such Licenses are currently in force and
there is no other License required to be hold or actions required to be taken by
the Company under the laws and regulations of the United States or any state or
local subdivision thereof, for the Company to own and lease its properties and
to conduct its business in all respects as presently conducted.
2.15 Labor Matters.. No severance pay liability of the Company will
result solely from the consummation of the transactions contemplated herein.
None of the employees of the Company is obligated under any contract or other
agreement, or subject to any judgment, decree or order of any court or agency,
which materially conflicts with the Company's business as presently or proposed
to be conducted. No officer or key employee of the Company has notified the
Company he or she is planning to terminate his or her employment. Subject to
general principles related to wrongful termination of employees, the employment
of each officer and employee of the Company is terminable at the will of the
Company.
2.16 Employee Benefit Plans. The Company has no employee benefit plan
or arrangement.
2.17 Litigation. There is no litigation, action, suit, governmental
investigation, arbitration, proceeding (including administrative proceedings)
(collectively referred to as "Litigation") presently pending or, to the best
knowledge of the Company and Stockholder, presently threatened against or
involving the Company or any of its assets or rights or which could affect the
performance of this Agreement or the consummation of the transactions
contemplated hereby and the Company and Stockholder know of no valid basis for
any potential litigation. There are no outstanding judgments, awards, orders or
decrees against or involving the Company or any of its assets. The Company is
not in default with respect to any order, writ, injunction, or decree of any
federal, state, local, or foreign court, department, agency, or instrumentality.
The Company is not presently engaged in any legal action to recover moneys due
to it or damages sustained by it. The Company has not received any customer
complaint concerning alleged defects in its products (or the design thereof)
that, if true, would materially adversely effect the operations or financial
condition of the Company.
2.18 No Violation of Agreements. The execution, delivery and
performance of this Agreement by the Company and the consummation of the
transactions contemplated hereby and thereby do not and will not conflict with
or violate any provision of the Articles of Incorporation, as amended, of the
Company and, assuming the consents specified in Section 2.19 of this Agreement
are obtained, do not and will not conflict with, violate, result in a breach of,
cause a default under or accelerate performance under (whether with notice or
lapse of time or otherwise), (I) any provision of law or regulation relating to
the business of the Company, (ii) any provision of any order, arbitration award,
judgment or decree to which the Company is subject, (iii) any provision of any
agreement, license or instrument to which the Company or any
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of its assets is subject, or (iv) any other restriction of any kind or character
to which the Company or any of its properties is subject.
2.19 Consents Required. The execution, delivery and performance of this
Agreement by the Company will not require the Company to obtain any consent,
approval or other action to avoid: (I) the loss of any permit or license or
other governmental authorization hold by the Company, (ii) the violation or
breach of, or a default under any real property lease or any commitment, note,
indenture, mortgage, lien, instrument, license, contract or agreement to which
the Company or any of its assets is subject, or (iii) giving to others any
interests or rights, including rights of termination, acceleration or
cancellation, in or with respect to any of the real property leases or material
properties, agreements, contracts or business of the Company.
2.20 Documents, Books and Records. The Company has made available for
inspection by Buyer and its advisors, originals or true and correct copies of
all documents listed in any schedule delivered by the Company to Buyer pursuant
to this Agreement which Buyer has requested to inspect. The minute books of the
Company, as previously made available to the Company and its representatives,
contain accurate records of all meetings of, and corporate actions taken by
(including actions taken by written consent) the respective Stockholder and
Boards of Directors of the Company. The Company has no records, systems,
controls, data or information recorded, stored, maintained, operated or
otherwise wholly or partly dependent upon or hold by any means (including any
electronic, mechanical or photographic process, whether computerized or not)
which (including all means of access thereto and therefrom) are not under the
exclusive ownership and direct control of the Company.
2.21 Trade Names, Trademarks and Copyrights. [deleted]
2.22 Patents. [deleted]
2.23 Trade Secrets. [deleted]
2.24 Transactions with Management. The Company is not a party to any
contract, agreement, lease or commitment with any Stockholder or any officer or
director of the Company, or any "associates" of any such persons (as the term
"associates" is defined in Rule 405 of the rules and regulations under the
Securities Act of 1933), none of such persons owns, directly or indirectly, any
interest (equity or debt) in any entity which is a supplier, customer or
competitor of the Company (other than the ownership of one percent (1%) or less
of the outstanding capital stock of a publicly-held company), and there are no
loans or advances outstanding to any of such persons from the Company (excluding
advances for normal reimbursable business expenses).
2.25 Hazardous Materials. [deleted]
2.26 Customers and Sales. Schedule 2.26 is a correct and current list
of all customers of the Company together with summaries of the sales made to
each customer during the most recent fiscal year. Except as indicated in
Schedule 2.26, neither the Company nor any
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Stockholder has any information, or is aware of any facts, indicating that any
of these customers intends to cease doing business with the Company or
materially alter the amount of the business they are presently doing with the
Company.
2.27 Accounting Controls. Neither the Company, nor any director,
officer, agent, employee, consultant or other person associated with or acting
on behalf of the Company (including, without limitation, any Stockholder), has
(a) used any corporate funds for any unlawful contributions, gifts,
entertainment or any other unlawful expenses relating to political activity, or
(b) made any direct or indirect unlawful payments to government officials or
others from corporate funds or established or maintained any unlawful or
unrecorded funds. The Company makes and keeps accurate books and records
reflecting its assets and maintains internal accounting controls which provide
reasonable assurance that (I) transactions are executed in accordance with
management's authorization, (ii) transactions are recorded as necessary to
permit preparation of the Company's financial statements and to maintain
accountability for the earnings and assets of the Company, and (iii) access to
the assets of the Company is permitted only in accordance with management's
authorization, and the recorded accountability of the assets of the Company is
compared with its existing assets at reasonable intervals.
2.28 Disclosure. None of this Agreement, the financial information
referred to in Section 2.5 hereof, any Schedule, Exhibit or certificate attached
hereto or delivered in accordance with the terms hereof or any document or
statement in writing which has been supplied by or on behalf of the Stockholder
or by any of the Company's directors or officers in connection with the
transactions contemplated by this Agreement contains any untrue statement of a
material fact, or omits any statement of a material fact necessary in order to
make the statements contained herein or therein not misleading. There is no fact
known to the Company or the Stockholder which materially and adversely affects
the business, prospects or financial condition of the Company or its properties
or assets, which has not been set forth in this Agreement, the financial
information referred to in Section 2.5 hereof, any Schedule, Exhibit or
certificate attached hereto or delivered in accordance with the terms hereof or
any document or statement in writing which has been supplied by or on behalf of
the Company and the Stockholder or by any of the Company's directors or officers
in connection with the transactions contemplated by this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE BUYER
Buyer hereby represents and warrants to the Stockholder as follows:
3.1 Due Incorporation. Buyer is a corporation duly incorporated,
validly existing and in good standing under the laws of Kentucky, and has all
corporate power and authority to execute, deliver and perform this Agreement and
the transactions contemplated thereby.
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3.2 Authority Relative to this Agreement. The execution, delivery and
performance of this Agreement by Buyer has been duly authorized by all necessary
corporate action on the part of Buyer.
3.3 No Violation of Law and Agreements. The execution, delivery and
performance of this Agreement by Buyer does not and will not conflict with or
violate any provision of its charter instrument of this Agreement are obtained,
does not and will not conflict with, violate, result in a breach of, or cause a
default under, (I) any provision of law or regulation relating to the business
of Buyer, (ii) any provision of any order, arbitration award, judgment or decree
of any judicial or other authority to which the Buyer is subject, (iii) any
provision of any agreement or instrument to which Buyer is subject (subject to
the receipt of certain required consents), or (iv) to the best of Buyer's
knowledge, any other restriction of any kind or character to which Buyer is
subject, which conflicts, violations, breaches or defaults in each of clauses
(I), (ii), (iii) and (iv) above would, individually or in the aggregate,
materially adversely affect Buyer or which would prohibit or restrict the
consummation of the transactions contemplated by this Agreement.
3.4 Consents Required. Buyer is not required to obtain any consents,
approvals, permits or authorizations for the execution, delivery and performance
of this Agreement, which consents shall have been received prior to the Closing.
The execution, delivery and performance of this Agreement by Buyer will not
constitute a material violation or breach of, or a default under any material
lease, commitment, note, indenture, mortgage, lien, instrument, license,
contract or agreement to which Buyer or any of its assets are subject.
3.5 Completeness of Representations and Warranties. The information
relating to Buyer contained in this Agreement and in any document, certificate,
exhibit, schedule of other writing furnished or to be furnished by Buyer
pursuant to this Agreement is true in all material respects, and no
representation or warranty made by Buyer in this Agreement or in any such
document, certificate, exhibit, schedule or other writing, insofar as such
representation or warranty pertains to Buyer, contains or will contain any
untrue statement of a material fact or omits or will omit to state a material
fact necessary to make such representation or warranty or any such statement not
misleading.
3.6 Buyer SEC Reports. Buyer has delivered to Stockholder copies of the
SEC reports as filed by Buyer with the Securities and Exchange Commission. All
of the Buyer SEC Reports are delivered without exhibits. The financial
statements contained in the Buyer SEC Reports (the "Buyer Financial Statements")
fairly present the consolidated financial condition and results of operations of
Buyer as at and for the periods therein specified in accordance with generally
accepted accounting principles consistently applied, all as more particularly
set forth in such financial statements and the notes thereto. The Buyer SEC
Reports do not contain any untrue statements of a material fact or omit to state
a material fact necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading.
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3.7 USTK Shares. The USTK Shares issued and to be issued to Stockholder
are and shall be validly issued, fully paid, nonassessable and free of
preemptive rights.
ARTICLE 4
COVENANTS PENDING CLOSING
[deleted]
ARTICLE 5
CONDITIONS TO THE OBLIGATIONS OF
THE STOCKHOLDER
[deleted]
ARTICLE 6
CONDITIONS TO THE OBLIGATIONS OF BUYER
[deleted]
ARTICLE 7
TERMINATION; AMENDMENT AND WAIVER
[deleted]
ARTICLE 8
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INDEMNIFICATION
8.1 Indemnification by the Stockholder. The Stockholder and Marshall
shall jointly and severally indemnify, defend and hold harmless Buyer and its
respective officers, directors, employees, affiliates and agents, against and in
respect of any and all losses, costs, expenses, obligations, liabilities,
damages, recoveries, and deficiencies (including without limitation any
deficiency assessment successfully asserted by the Internal Revenue Service or
any other taxing authority relating to a period prior to the Closing Date),
including interests penalties and reasonable attorneys' fees (collectively
"Damages") that any of them shall incur or suffer, which arise, result from, or
relate to (I) any acts or omissions to act of the Company or the Stockholder
occurring prior to the Closing Date; or (ii) the failure of any the Company's,
Stockholder's and Marshall's representations or warranties to be true and
correct, or any breach by the Company or a Stockholder of, or any failure by the
Company or any Stockholder to perform, any of their representations, warranties,
covenants or agreements in this Agreement or in any certificate, exhibit or
other instrument furnished or to be furnished by the Company or any Stockholder
under this Agreement.
8.2 Indemnification By Buyer. Buyer shall indemnify, defend and hold
harmless the Corporation and the Stockholder, and its officers, directors,
employees, affiliates and agents, against and in respect of any and all Damages
(as defined above) that any of them shall incur or suffer which arise, result
from, or relate to the failure of any of Buyer's representations or warranties
to be true and correct, or any breach by Buyer of, or any failure by Buyer to
perform, any of their representations, warranties, covenants or agreements in
this Agreement or in any certificate, exhibit or other instrument furnished or
to be furnished by Buyer under this Agreement.
8.3 Officer's Certificate. If any Damages shall be paid by any person
(an "Indemnitee") entitled to be indemnified under this Article 8 or a claim or
proceeding shall be asserted or pending against an Indemnitee which may give
rise to any Damages with respect to which such Indemnitee would be entitled to
be indemnified hereunder by the other party hereto (an "Indemnitor"), such
Indemnitee shall deliver a certificate signed by a Stockholder, in the case of a
claim against Buyer, or by an officer of Buyer, in the case of a claim against a
Stockholder (an "Officer's Certificate"), which Officer's Certificate shall
(a) state that the Indemnitee has paid or properly accrued
Damages, or that a claim has been asserted against such
Indemnitee, or a proceeding is pending, which claim or
proceeding, in the Indemnitee's judgment, may result in the
incurrence of Damages to which the Indemnitee is entitled to
indemnification pursuant hereto; and
(b) specify in reasonable detail each individual item of paid
or accrued Damages or each such claim or proceeding and the
amount of such paid or accrued Damages or the amount of Damage
that, in Indemnitee's judgment, may
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arise from such claim or proceeding.
8.4 Objections to Claims. If an Indemnitor shall object to the
indemnification of an Indemnitee in respect of any claim or claims specified in
any Officer's Certificate, the Indemnitor shall, within thirty (30) days after
delivery to the Indemnitor of such officer's Certificate, deliver to the
Indemnitee an Officer's Certificate to such effect, and the Indemnitor and the
Indemnitee shall, within the thirty (30) day period beginning on the date of
delivery to the Indemnitee of such written objection, attempt in good faith to
agree upon the rights of the respective parties with respect to each of such
claims to which the Indemnitor shall have so objected. If the Indemnitee and the
Indemnitor shall succeed in reaching agreement on their respective rights with
respect to any of such claims, the Indemnitee and the Indemnitor shall promptly
prepare and sign a memorandum setting forth such agreement.
8.5 Third Party Claims. Promptly after the assertion by any third party
of any claim against an Indemnitee that, in the judgment of such Indemnitee, may
result in the incurrence by such Indemnitee of Damages for which such Indemnitee
would be entitled to indemnification pursuant to this Agreement, such Indemnitee
shall deliver to the Indemnitor from whom such indemnification could be sought
an Officer's Certificate with respect to such claim, and such Indemnitor may, at
its option, assume and control the defense (including any settlement thereof) of
the Indemnitee against such claim. Any Indemnitee shall receive notice of the
status, any current developments and management of the claims, and prior written
notice of any proposed settlement or conclusion of such claim, and shall have
the right to employ separate counsel in any such action or claim and to
participate in the defense thereof, but the fees and expenses of such counsel
shall not be an expense of the Indemnitor unless (I) the Indemnitor shall have
failed, within a reasonable time after having been notified by the Indemnitee of
the existence of such claim as provided in the preceding sentence, to assume the
defense of such claim, or (ii) the employment of such counsel has been
specifically authorized by the Indemnitor. If there is a final judgment against
a party to this Agreement in any such action, or if there is a settlement of any
such action effected with the consent of such Indemnitor, such Indemnitor shall,
subject, in the case of claims for indemnification against the Company or a
Stockholder, to the provisions of Section 8.1, and, in the case of claims for
indemnification against Buyer, to the provisions of Section 8.2, indemnify and
hold harmless each Indemnitee from an against any Damages by reason of such
judgment or settlement.
8.6 Agreed Claims. Claims specified in any Officer's Certificate to
which an Indemnitor shall not object in writing within fifteen (15) days after
receipt by such Indemnitor of such Officer's Certificate, claims covered by a
memorandum of agreement of the nature described in Section 8.4 and claims which
have been reduced to judgment or settled with the consent of the Indemnitor as
provided in Section 8.5 are hereinafter referred to, collectively, as "Agreed
Claims." The amount of any Agreed Claim shall be paid, in cash, by the
Indemnitor to the Indemnitee with respect thereto promptly after the
determination thereof. In the event any such payment is not promptly made by
Stockholder as Indemnitors to Buyer as Indemnitee, Buyer shall have the right to
set-off all or part of such amount pro rata against the payments due the
Stockholder after the Closing Date.
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8.7 Survival. The representations, warranties, covenants and agreements
of the parties, and the indemnification by the parties with respect thereto,
shall survive until all applicable statutes of limitation shall have expired.
8.8 Definition of Best Knowledge. The terms "best knowledge" or "best
of [a party's] knowledge", as used herein shall include the actual knowledge of
a party or knowledge a reasonable person should have obtained after exercising
due diligence with respect to the matter at issue, including, without
limitation, making due inquiry of the appropriate officers and directors of the
Company and due investigation of the Company's records.
8.9 Rescission.. Notwithstanding the foregoing, the parties agree that
in the event Buyer shall be in material default in its payment obligations under
Article I hereof or the Proceeds Agreement between the parties dated the date
hereof and Stockholder and Marshall shall not be in material default of any
obligation then owed the Buyer or any of its affiliates, and such default shall
not be remedied within 30 days, Stockholder shall have the right and option to
rescind the purchase and sale effected hereby and the assignee under the Atech
Assignment and Assumption Agreement shall have the right to rescind such
agreement. In the event of such a recision neither party shall have any right to
recover damages against the other party, either Stockholder for a return of the
Company in the same condition as the day immediately prior to the Closing or
Buyer for Purchase Price Payments made prior to such rescission.
ARTICLE 9
MISCELLANEOUS
9.1 Governing Law. This Agreement and the legal relations between the
parties shall be governed by and construed in accordance with the laws of the
Commonwealth of Kentucky, without regard to conflicts of laws principles. The
parties hereby irrevocably submit to the non-exclusive jurisdiction and venue of
any state or federal court sitting in Jefferson County, Kentucky and
Hillsborough County, Florida in any action or proceeding arising out of or
relating to this Agreement, and the parties hereby irrevocably agree that all
claims in respect of such action or proceeding may be heard and determined in
such State or federal Court. The parties hereby irrevocably waive, to the
fullest extent they may do so, the defense of an inconve nient forum to the
maintenance of such action or proceeding. The parties hereby consent and agree
that the summons and complaint and any other process which may be serviced in
any such action or proceeding may be served by mailing (by registered or
certified mail) or delivering a copy of such process to the opposing party at
its address set forth herein. The parties agree that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgement or in any other manner provided by law.
9.2 Notices. [deleted]
9.3 Costs. The parties shall each bear those expenses attributable to
them in connection with this Agreement including their own fees of counsel and
brokerage fees.
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9.4 Brokers. The parties hereto warrant and represent to each other
party hereto that no person is entitled to any commission or finder's fee in
connection with the transactions contemplated in this Agreement. Each party
hereto agrees to indemnify, defend and hold harmless each other party hereto
against any claim, loss, liability or expense for any such commission or fee
incurred by reason of any act, omission or statement of the indemnifying party.
9.5 Captions. The captions of sections and paragraphs hereof are for
convenience only and shall not control or affect the meaning or construction of
any of the provisions of this Agreement.
9.6 Counterparts. This Agreement may be executed in several
counterparts, and all so executed shall constitute one agreement, binding on
each of the parties, notwithstanding that all the parties are not signatory to
the original or the same counterpart. Delivery by telecopy of an executed
counterpart signature page shall constitute delivery for all purposes hereunder.
9.7 Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties' respective heirs, successors and assigns.
9.8 Entire Agreement. This Agreement constitutes the entire agreement
among the parties pertaining to the subject matter contained in it and
supersedes all prior and contemporaneous agreements, representations, and
understandings of the parties.
9.9 Publicity. All notices to third parties and all other publicity
concerning the transactions contemplated by this Agreement shall be jointly
planned and coordinated by the Company and Buyer. Unless otherwise required by
applicable laws, neither of the parties shall act unilaterally in this regard
without the prior approval of the other party, which approval shall not be
unreasonably withheld.
9.10 No Third Party Beneficiaries. Except as expressly provided herein,
each party hereto intends that this Agreement shall not benefit or create any
right or cause of action in or on behalf of any person other than the parties
hereto.
9.11 Exhibits and Schedules. Each of the Exhibits and Schedules
referred to herein is an integral part of this Agreement and is incorporated
herein by this reference.
9.12 Noncompetition. [deleted]
9.13 Reasonableness of Restrictions. [deleted]
9.14 Remedies for Breach. [deleted]
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IN WITNESS WHEREOF, the parties have duly executed and
delivered this Agreement on March __, 2001, but as of the date first above
written.
TRANS-LOGISTICS, INC.
BY:_______________________________________________
Allan Marshall, President
LOGISTICS MANAGEMENT RESOURCES, INC.
BY:_______________________________________________
Danny Pixler, President
10602 Timberwood Circle, Louisville, KY 40223
- --------------------------------------------------
ALLAN MARSHALL
- --------------------------------------------------
CHRISTINE A. OTTEN
Address: 15703 Blair Ct., Tampa, FL 33647
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Schedules
2.9(I)(B)--Personal Property List Server 8 Workstations 9 monitors 8 desks and
chairs six line phone system
2.9(iii)--Contracts
Real Property Lease for Temple Terrace Business Center
2.9(v)--Banking information
2.26--Customer summary [attached]
- ----------------------
-17-
PROCEEDS AGREEMENT
The undersigned parties to the Stock Purchase Agreement dated as of
January 1, 2001 (the "Agreement") hereby agree as follows (any capitalized terms
not defined herein having the meanings given them in the Agreement):
1. Guaranty. Until April 1, 2003 (the "Payoff Date") Buyer guaranties
to Stockholder the receipt of not less than an average price per Share upon the
sale or other disposition in an arms length transaction of the USTK Shares equal
to the quotient determined by dividing the total dollar amount of consideration
paid in USTK Shares by the aggregate number of USTK Shares delivered in such
payment (subject to appropriate adjustment in the event of any stock split,
reverse stock split, dividend of Shares or reclassification of the Shares) (the
"Guarantied Price"). The Payoff Date shall be extended up to a maximum of an
additional six months for any period during which the Shares are not freely
tradeable (excluding restrictions under Rule 144). The Shares shall be deemed to
be not freely tradeable if they are not listed on any national securities
exchange, on the National Association of Securities Dealers Automated Quotation
System, by the National Quotation Bureau, Incorporated or on any other quotation
system or bureau which regularly reports purchases and sales of the Shares, or
if such a market exists but the trading volume for the Shares is such that
Stockholder cannot effect a sale of not more than 5,000 Shares (appropriately
adjusted in the event of any stock event) during any three consecutive trading
days, in which event the total number of days for which a sale cannot be
effected shall comprise the number of days by which the Payoff Date shall be
extended. If the Shares are not tradeable for any period in excess of six
months, Stockholder shall have the right to "put" Shares to Buyer at the
Guarantied Price.
2. Deemed Sales. For purposes hereof, if Stockholder fails to (I)sell
Shares as directed by Buyer when and in the amounts directed by Buyer, or (II)
elect to receive cash in any merger or other event involving the Buyer in which
a cash election is offered and Buyer shall direct Stockholder to make a cash
election with respect to such transaction (each such event or circumstance in
clauses I-II being a "Sale Opportunity" and the price which would have been
received being the "Sale Opportunity Price"), then Stockholder shall have been
deemed to have sold the Shares which would have been eligible for sale in each
such Sale Opportunity at the Sale Opportunity Price, allocating such Shares
among such Sale Opportunities in a manner which yields the greatest aggregate
deemed sales proceeds.
For purposes hereof, "Buyer" shall include any entity into which Buyer
is combined and "Shares" shall mean shares of stock of the combining entity
given Stockholder as consideration in such combination.
3. Sales. Stockholder shall effect all sales of Shares in a manner
which is reasonably calculated to yield the highest possible amount of proceeds
for all dispositions anticipated to be made through the Payoff Date, taking into
consideration the average trading volume of the Shares and other relevant
considerations. Stockholder shall give Buyer notice about their sales as
requested from time-to-time, and shall give Buyer one week prior notice of any
proposed sale or series of sales of Shares in excess of 10,000 Shares.
4. Shortfall Payment. If on the Payoff Date a Stockholder's average
sales price for dispositions to which the guaranteed price in Section 1 applies
and Deemed Sales (the "Average Price") is less than the Guarantied Price, Buyer
shall pay to such Stockholder an amount (the "Shortfall Payment") in cash equal
to the difference between (I) the product of the Guarantied Price times the
number of Shares sold subject to the Guaranty and (II) the product of the
Average Price times the number of such Shares. Such payment shall be made
promptly after determination of the Shortfall Payment.
5. Counterparts. This Agreement may be executed in several
counterparts, and all so executed shall constitute one agreement, binding on
each of the parties, notwithstanding that all the parties are not signatory to
the original or the same counterpart. Delivery by telecopy of an executed
counterpart signature page shall constitute delivery for all purposes hereunder.
6. Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties' respective heirs, successors and assigns.
7. Entire Agreement. This Agreement constitutes the entire agreement
among the parties pertaining to the subject matter contained in it and
supersedes all prior and contemporaneous agreements, representations, and
understandings of the parties.
IN WITNESS WHEREOF, Buyer and Stockholder have duly executed and
delivered this Agreement as of the date first above written.
Dated: As of January 1, 2001
LOGISTICS MANAGEMENT RESOURCES, INC.
BY:________________________ _______________________
Danny Pixler Christine Otten