EXHIBIT 10.62
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JACK D. ASHABRANNER II )
)
Plaintiff )
)
vs. ) Case No. H-98-1271
) JURY TRIAL DEMANDED
CORPORATE EXPRESS DELIVERY )
SYSTEMS, INC. f/k/a U. S. DELIVERY )
SYSTEMS, INC., CORPORATE )
EXPRESS, INC., and CORPORATE )
DELIVERY SYSTEMS-SOUTHWEST, )
INC. f/k/a DISTRIBUTION )
SOLUTIONS, INC. )
)
Defendants )
MUTUAL RELEASE AND CONTRACT OF SETTLEMENT
1. The parties to this Mutual Release and Contract of Settlement (the
"Agreement") are Jack D. Ashabranner II ("Ashabranner") and UST Delivery
Systems, Inc. f/k/a Corporate Express Delivery Systems, Inc., f/k/a U. S.
Delivery Systems, Inc., ("UST") (Ashabranner and UST are collectively referred
to herein as the "Parties").
2. The Parties have been engaged in the litigation styled No.
H-98-1271, JACK D. ASHABRANNER II V. CORPORATE EXPRESS DELIVERY SYSTEMS, INC.
F/K/A U.S. DELIVERY SYSTEMS, INC., CORPORATE EXPRESS, INC. AND CORPORATE EXPRESS
DELIVERY SYSTEMS-SOUTHWEST, INC. F/K/A DISTRIBUTION SOLUTIONS, INC., In the
United States District Court For the Southern District of Texas, Houston
Division and an arbitration styled No. 70 160
<PAGE>
00265 99; JACK D. ASHABRANNER II V. CORPORATE EXPRESS DELIVERY
SYSTEMS-SOUTHWEST, INC. F/K/A DISTRIBUTION SOLUTIONS, INC.; Before the American
Arbitration Association (collectively referred to as the "Litigation"). Each of
the parties has expressly denied, and continues to deny any liability to the
other whatsoever for any of the charges asserted in the Litigation or otherwise.
Nevertheless, mindful of cost and expense associated with continued Litigation,
the Parties have agreed to compromise and settle the Litigation on the terms set
out in this Agreement.
3. For the mutual consideration expressed in this Agreement, the
Parties have agreed to the following terms:
a. The parties agree to the entry of an Order of Dismissal in the
form attached as Exhibit "A," to be rendered in Cause No.
H-98-127, and to refrain from taking an appeal from such
order. The Order of Dismissal shall be delivered to and held
by the Trustee (as defined below) and shall not be filed with
any court pending consummation of this Agreement. If this
Agreement is fully consummated, then the Trustee shall deliver
the Order of Dismissal to UST for filing with the appropriate
court. If this Agreement is terminated pursuant to Paragraphs
3(g) and 3(j), then the Order of Dismissal shall be null and
void, except as to arbitration as set forth in Paragraph 3(b)
below, and the Trustee shall not file the Order of Dismissal
but shall return it to Ashabranner. Neither UST nor
Ashabranner shall engage in any discovery pending the
consummation of this Agreement.
b. The parties agree to dismiss their respective claims, to
assume responsibility for their respective attorneys fees,
costs and expenses in Arbitration No. 70 160 00265 99, and to
deliver a notice of dismissal to the American Arbitration
Association in the form attached as Exhibit "B."
c. UST agrees to pay to Ashabranner and his counsel, London &
Schaeffer, L.L.P., jointly, the sum of $50,000.00 (Fifty
Thousand and No/100 Dollars) at the closing of this Agreement.
d. Subject to the provisions of this Paragraph 3, United Shipping
& Technology, Inc., a Utah corporation ("USTI"), parent
corporation of
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Corporate Express Delivery Systems, Inc., will issue and
deliver to [___________ Bank/Trust Company/Title Company
("Trustee")], for the benefit of Ashabranner and his counsel,
London & Schaeffer, jointly, 100,000 shares USTI common stock,
par value $.0004 per share, as escrow agent for the parties,
subject to the terms and conditions of this Agreement. Such
shares shall be registered in the name of Ashabranner and said
counsel but subject to reduction in accordance with the terms
of this Agreement.
e. Ashabranner and such counsel warrant and represent that each
of them is an "accredited investor" as that term is defined
under Rule 501 of Regulation D under the general rules and
regulations of the Securities and Exchange Commission ("SEC")
under the Securities Act of 1933, as amended (the "Act"). Such
shares constitute "restricted securities" as defined under SEC
Rule 144 under the Act. Ashabranner and said counsel make the
representations, warranties and acknowledgments contained in
Exhibit "C." Ashabranner and his counsel acknowledge that the
subject shares have not been registered under the Act and that
the sale, transfer or other disposition thereof is restricted
unless such shares are registered under the Act and applicable
state securities laws, or an exemption from registration is
available.
f. As soon as practicable following the execution and delivery of
this Agreement, USTI shall cause a Notice of Listing of
Additional Shares to be filed with the Nasdaq Stock Market
(Nasdaq SmallCap Market) listing the subject shares. USTI
shall either: (i) determine to file with the Securities and
Exchange Commission an amendment to USTI's pending S-3
Registration Statement (No. 333-31414) (the "Pending S-3")
listing the Trustee, for the benefit of Ashabranner and such
counsel, as a selling shareholder thereunder; or (ii)
determine to file and file within 60 days following the
execution and delivery of this Agreement a new Registration
Statement ("New Registration Statement") on Form S-3 or such
other form as may be available to USTI, for the purpose of
registering the subject shares, together with any other shares
which USTI may determine to register for the resale of such
shares under the Act. In connection with said Pending S-3 or
the New Registration Statement, Ashabranner and his counsel
will provide a written response to a questionnaire from USTI
providing the information which is customarily given by
shareholders to an issuer in a public offering. USTI shall use
its best efforts to cause, subject to the applicable
provisions and rules and regulations under the Act and the
Securities Exchange Act of 1934, as amended, the Registration
Statement to be declared effective.
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g. In the event the Pending S-3 or New Registration Statement is
not declared effective by the SEC on or before June 30, 2000,
Ashabranner may, upon written notice to the Trustee and USTI,
which must be given prior to the effectiveness of the
registration statement (if after June 30, 2000), declare this
Agreement terminated.
h. Upon the effective date of either the Pending S-3 or the New
Registration Statement, the Trustee shall ascertain the
average closing sale price of USTI's common stock for the
twenty trading days immediately preceding the effective date
of either the Pending S-3 or the New Registration Statement as
reported by Nasdaq. The Trustee shall thereupon deliver to
USTI's transfer agent the certificate (or certificates)
representing the shares held by it, and instruct that such
transfer agent deliver to Ashabranner and his counsel a number
of common shares having a market value (the "Market Value")
equal to $550,000 (the quotient of $550,000 divided by such
twenty day average closing price of USTI common stock). The
remaining shares not so delivered shall be canceled and
returned by the Trustee and shall have the status of
authorized, unissued shares of USTI.
i. In the event the number of shares deposited by USTI with the
Trustee is insufficient to equal a Market Value of $550,000,
USTI shall either deliver additional restricted shares (the
"Additional Shares") of its common stock to Ashabranner and
such counsel which, when added to the shares deposited with
the Trustee, will equal a Market Value of $550,000 (determined
as of the Effective Date) or deliver to Ashabranner, within
five (5) business days a cash payment which, when added to the
shares deliverable by the Trustee, will equal $550,000. USTI
will notify the Trustee and Ashabranner's counsel whether it
will deliver the Additional Shares or make a cash payment as
described above.
j. If Ashabranner elects to terminate this Agreement pursuant to
Paragraph 3(g), this Agreement shall terminate on the third
business day following his notice to USTI and the Trustee
pursuant to the preceding paragraph (the "Termination Date").
On the Termination Date, the Trustee shall return the shares
deposited with it by USTI to USTI.
k. If USTI elects to deliver Additional Shares to Ashabranner,
such shares shall constitute restricted securities as
described in Paragraph 3(e). USTI shall have the obligation to
register the Additional Shares upon demand of Ashabranner, by
filing a new registration statement with the SEC which
includes the Additional Shares for resale, as contemplated by
Paragraph 3(f) and if a registration statement is filed, shall
use its best efforts to
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cause such registration statement to be declared effective.
Such registration statement to cover Additional Shares shall
be filed (subject to compliance with applicable regulations
under the Act), as soon as practicable, but in all events
within 30 business days following its notice to the Trustee,
Ashabranner and its counsel of USTI's intent to deliver
Additional Shares.
l. In the event this Agreement is terminated, pursuant to
Paragraphs 3(g) and 3(j), the $50,000 cash payment made by
USTI pursuant to Paragraph 3(c) shall be retained by
Ashabranner and his counsel as liquidated damages, but such
amount shall be deemed a credit to any amount recovered by
Ashabranner as a result of this litigation.
4. For the mutual consideration expressed in this Agreement Ashabranner
agrees to release, indemnify and hold harmless UST Delivery Systems, Inc. f/k/a
Corporate Express Delivery Systems, Inc., f/k/a U. S. Delivery Systems, Inc.,
Corporate Express, Inc., CEX Holdings, Inc., Corporate Express Delivery Systems
Southwest, Inc., United Shipping and Technology, Inc., and all of their
respective predecessors, successors, affiliates, parents, subsidiaries, agents,
employees, servants, attorneys, officers, partners, general or limited,
successors in interest, and all of their respective heirs, executors,
administrators, successors and assigns (all of which are collectively referred
to as the "UST Released Parties") of and from any and all causes of action,
claims, liabilities, demands made by anyone claiming by, through, or under
Ashabranner of whatever nature, whether known or unknown, past, present, or
future, whether contractual, statutory or in tort, or otherwise, arising out of
the Litigation, including but not limited to all claims that could have been
asserted in those proceedings, to which reference is expressly made -- save and
except for rights arising under this Agreement, which rights are expressly
retained. It is expressly agreed and understood that this release
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<PAGE>
applies not only to all claims arising out of the pending proceedings but also
to any and all other claims and causes of action that Ashabranner has or may
have against the UST Released Parties, including any claims for injuries or
damages of kind that at this time are unknown and unanticipated but that may
develop in the future from any event occurring prior to the date of this
Agreement.
5. UST agrees to release, indemnify and hold harmless and all of his
heirs, executors, administrators, successors and assigns (all of which are
collectively referred to as the "Ashabranner Released Parties") of and from any
and all causes of action, claims, liabilities, demands made by anyone claiming
by, through, or under UST of whatever nature, whether known or unknown, past,
present, or future, whether contractual, statutory or in tort, or otherwise,
arising out of the Litigation, including but not limited to all claims that
could have been asserted in those proceedings, to which reference is expressly
made -- save and except for rights arising under this Agreement, which rights
are expressly retained. It is expressly agreed and understood that this release
applies not only to all claims arising out of the pending proceedings but also
to any and all other claims and causes of action that UST has or may have
against the Ashabranner Released Parties, including any claims for injuries or
damages of kind that at this time are unknown and unanticipated but that may
develop in the future from any event occurring prior to the date of this
Agreement.
6. The Parties represent that they have been fully advised by the
counsel of their choosing regarding the meaning and effect of this Agreement,
that they rely wholly upon their own judgment, belief and knowledge of the
nature and extent of the damages
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<PAGE>
alleged and the liability questions involved in the Litigation, and covenant
that they have not been influenced to any extent whatsoever or induced to enter
this Agreement in reliance upon any statement, promise or representation of
another party or any of the other parties hereby released. The Parties, by their
signatures below, acknowledge that they have read this Agreement, that they
fully understand it, and that they have executed it of their own free will and
accord. The Parties further represent and warrant that:
a. They have not conveyed, transferred, assigned, pledged or
otherwise encumbered any of their rights in the claims
asserted in the Litigation, except for the interest
Ashabranner has previously conveyed to his attorneys, London &
Schaeffer, L.L.P. and as to which interest Ashabranner and
London & Schaeffer hereby agree to indemnify and hold harmless
the UST Released Parties from any and all claims.
b. There are no outstanding bills relating to any injury
attributable directly or indirectly to the claims in the
Litigation, and no statutory or common law liens exist to
secure payment for any such expenses;
c. They are fully competent and authorized to enter into this
Agreement and are doing so only after full consultation with
their counsel regarding the meaning and intent of this
Agreement and all of its terms.
7. It is further expressly understood that by entering into this
Agreement, the Parties make no admission of any liability of any sort to one
another, which liability is expressly denied. Instead, this Agreement represents
a full and complete settlement of any and all disputes among the Parties, to
resolve once and for all every disputed claim that has been asserted or could
have been asserted arising from or related to the circumstances surrounding the
Litigation. This Agreement represents the complete
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<PAGE>
agreement of the Parties and the Parties have not agreed to do or omit to do
anything not expressly set forth in this Agreement.
8. The Parties agree that although the specific terms of their
agreement shall remain confidential, upon inquiry each party is free to state
that they have resolved all of the outstanding disputes amicably and to their
mutual satisfaction.
9. This Agreement shall be governed by the law of the State of Texas
and all parties hereby consent to the jurisdiction of the district courts of
Harris County, Texas regarding any disputes or disagreements which may later
arise regarding the enforcement, interpretation or construction of this
Agreement.
10. This Agreement may be executed in multiple counterparts, each of
which when fully signed shall constitute an original document.
Signed on the ______ day of April, 2000.
UST DELIVERY SYSTEMS, INC.
By:
----------------------------------
, its President
--------------------------
Jack D. Ashabranner II.
-------------------------------------
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APPROVED AS TO FORM & SUBSTANCE:
LONDON & SCHAEFFER, L.L.P.
By:
----------------------------------
Richard London
COUNSEL FOR JACK D. ASHABRANNER II
ABRAMS SCOTT & BICKLEY, L.L.P.
By:
----------------------------------
Barry Abrams
COUNSEL FOR UST DELIVERY SYSTEMS, INC.
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<PAGE>
EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JACK D. ASHABRANNER II )
)
Plaintiff )
)
vs. ) Case No. H-98-1271
) JURY TRIAL DEMANDED
CORPORATE EXPRESS DELIVERY )
SYSTEMS, INC. f/k/a U. S. DELIVERY )
SYSTEMS, INC., CORPORATE )
EXPRESS, INC., and CORPORATE )
DELIVERY SYSTEMS-SOUTHWEST, )
INC. F/K/A DISTRIBUTION )
SOLUTIONS, INC. )
)
Defendants )
FINAL JUDGMENT
On this day the parties appeared through their respective counsel of
record to announce that the parties have resolved the pending litigation
amicably and agreed to its dismissal with prejudice. Accordingly,
It is ordered that all of the claims asserted by each of the parties in
this action are dismissed with prejudice.
All other relief not expressly granted is hereby denied.
Each party shall bear its own costs of court.
Signed on _______________________, 2000.
------------------------------------
HONORABLE JOHN D. RAINEY
UNITED STATES DISTRICT JUDGE
<PAGE>
APPROVED AS TO FORM & SUBSTANCE:
LONDON & SCHAEFFER
By:
-----------------------------------
Richard S. London
STATE BAR NO. 1251330
3118 Richmond, Suite 200
Houston, Texas 77098
(713) 524-7300
(713) 528-5677 (telecopy)
COUNSEL FOR JACK D. ASHABRANNER II
ABRAMS SCOTT & BICKLEY, L.L.P.
By:
-----------------------------------
Barry Abrams
State Bar No. 00822700
600 Travis, Suite 6601
Houston, Texas 77002
(713) 228-6601
(713) 228-6605 (telecopy)
MAYER, BROWN & PLATT
Alan N. Salpeter
Caryn Jacobs
Christina Egan
190 South LaSalle Street
Chicago, IL 60603
(312) 782-0600
(312) 701-7711 (telecopy)
COUNSEL FOR DEFENDANTS
CORPORATE EXPRESS DELIVERY SYSTEMS, INC.,
CORPORATE EXPRESS, INC., AND
CORPORATE EXPRESS DELIVERY SYSTEMS-SOUTHWEST, INC.
A-2
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EXHIBIT B
September 27, 2000
BY TELECOPY
-----------
Mr. Santos Trevino
Case Manager
American Arbitration Association
1750 Two Galleria Tower
13455 Noel Road
Dallas, Texas 75240-6636
Re: 70 160 00265 99; JACK D. ASHABRANNER II V. CORPORATE EXPRESS
DELIVERY SYSTEMS-SOUTHWEST, INC. F/K/A DISTRIBUTION SOLUTIONS,
INC.; Before the American Arbitration Association
Dear Mr. Trevino:
The parties have amicably resolved their pending dispute, agreed to
dismiss their respective claims with prejudice and agreed to assume
responsibility for their respective attorneys fees, costs and expenses in this
proceeding.
Please notify the arbitrator of the parties' agreement and take the
necessary steps to have this proceeding dismissed.
If you have any questions, please do not hesitate to contact us.
Very truly yours,
Richard London
COUNSEL FOR JACK D. ASHABRANNER
Barry Abrams
Counsel for Corporate Express Delivery
Systems-Southwest, Inc. f/k/a Distribution
Solutions, Inc.
<PAGE>
EXHIBIT C
IMPORTANT: PLEASE READ CAREFULLY BEFORE SIGNING: SIGNIFICANT
REPRESENTATIONS ARE CALLED FOR HEREIN.
UNITED SHIPPING & TECHNOLOGY, INC.
SUBSCRIPTION AGREEMENT
AND
LETTER OF INVESTMENT INTENT
United Shipping & Technology, Inc.
9850 51st Avenue North, Suite 110
Minneapolis, Minnesota 55442
Ladies and Gentlemen:
To induce you to issue shares of common stock (the "Shares") of United
Shipping & Technology, Inc., a Utah corporation (the "Company") to the
undersigned, the undersigned acknowledge and represent that:
1. the undersigned have received and reviewed the following documents
from the Company:
* 10-KSB Report of the Company for the fiscal year
ended June 30, 1999.
* 10-QSB Report for the fiscal quarters ended October
2, 1999 and January 1, 2000.
* The Company's 1999 Annual Report to Shareholders.
* The Company's preliminary prospectus on Form S-3
filed with the Securities and Exchange Commission on
March 1, 2000 (Registration No. 333-31414).
* The Company's preliminary proxy materials as filed
with the SEC on April 17, 2000 in connection with its
Annual Meeting to be held on May 22, 2000.
* 8-K Current Report of the Company, to disclose
certain audited and unaudited financial statements of
the courier operations of Corporate Express Delivery
Systems, Inc., as filed with the Securities and
Exchange Commission on October 8, 1999, and as
amended on December 8, 1999.
a. The undersigned is able to bear the economic risk of the
investment in the Shares;
<PAGE>
b. The undersigned has knowledge and experience in financial
and business matters, that it is capable of evaluating the merits and
risks of the prospective investment in the Shares and that it is able
to bear such risks.
c. The undersigned understands an investment in the Shares are
speculative but believes that the investment is suitable based upon the
undersigned's investment objectives and financial needs, and has
adequate means for providing for the undersigned's current financial
needs and contingencies, and has no need for liquidity of investment
with respect to the Shares;
d. The undersigned has been given access to full and complete
information regarding the Company (including the opportunity to meet
with Company officers and review all the above written documents and
such other documents as the undersigned may have requested in writing)
and has utilized such access to the undersigned's satisfaction for the
purpose of obtaining information in addition to, or verifying
information included in, the Company Materials;
e. The undersigned recognizes that the Shares, as an
investment, involve a high degree of risk, including, but not limited
to, the risks described in the S-3 Registration under the heading "Risk
Factors"; and
f. The undersigned realizes that (i) the purchase of Shares is
a long-term investment; (ii) the purchasers of Shares must bear the
economic risk of investment for an indefinite period of time because
the Shares have not been registered under the Securities Act of 1933,
as amended (the "Act") and, therefore, cannot be sold unless they are
subsequently registered under the Act or an exemption from such
registration is available; and (iii) the transferability of the Shares
is restricted, and (A) requires the written consent of the Company, (B)
requires conformity with the restrictions contained in paragraphs 4 and
5 below, and (C) will be further restricted by a legend placed on the
certificate(s) representing the Shares stating that the Shares have not
been registered under the Act and referring to the restrictions on
transferability of the Shares, and by stop transfer orders or notations
on the Company's records referring to the restrictions on
transferability.
2. The undersigned has been advised that the Shares are not being
registered under the Act or relevant state securities laws pursuant to
exemptions from the Act and such laws, and that the Company's reliance upon such
exemptions is predicated in part on the undersigned's representations of the
undersigned to the Company contained herein. The undersigned represents and
warrants that the Shares are being purchased for his or her own account and for
investment and without the intention of reselling or redistributing the same,
that the undersigned has made no agreement with others regarding any of such
Shares and that his or her financial condition is such that it is not likely
that it will be necessary to dispose of any of such Shares in the foreseeable
future. The undersigned further represents and agrees that if, contrary to his
or her foregoing intentions, the undersigned should later desire to dispose of
or transfer any of such Shares in any manner, the undersigned shall not do so
without first obtaining (a) the opinion of counsel designated by the Company
that such proposed disposition or transfer lawfully may be made without the
registration of such Shares for such purpose pursuant to the Act, as then in
effect, and applicable state securities laws, or (b) such registrations (it
being
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expressly understood that the Company shall not have any obligation to register
the Shares for such purpose).
The undersigned agrees that the Company may place a following
restrictive legend on the certificate(s) representing the Shares,
containing substantially the following language:
The Shares represented by this Certificate were issued without
registration under the Securities Act of 1933, as amended (the
"Act"), and without registration under state securities laws,
in reliance upon exemptions contained in the Act and such
laws. No transfer of these Shares or any interest therein may
be made except pursuant to effective registration statements
under said laws unless this Corporation has received an
opinion of counsel satisfactory to it that such transfer or
disposition does not require registration under said laws and,
for any sales under Rule 144 of the Act, such evidence as it
shall request for compliance with that rule.
The undersigned agrees and consents that the Company may place a stop
transfer order on the Certificate(s) representing the Shares to assure
the undersigned's compliance with this Agreement and the matters
referenced above. The above legend will be removed if and when the
Shares are registered under the Act.
3. The undersigned acknowledges that the Company at a future date may
file a registration statement (the "Registration Statement") with the Securities
and Exchange Commission to facilitate an underwritten public offering of its
securities. The undersigned agrees that should such an initial public offering
be made and should the managing underwriter of such offering require, the
undersigned will not, without the prior written consent of the Company and such
underwriter, during the Lock Up Period as defined herein: (i) sell, transfer or
otherwise dispose of, or agree to sell, transfer or otherwise dispose of any of
the Shares beneficially held by the undersigned during the Lock Up Period; (ii)
sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise
dispose of any options, rights or warrants to purchase any of the Shares
beneficially held by the undersigned during the Lock Up Period; or (iii) sell or
grant, or agree to sell or grant, options, rights or warrants with respect to
any of the Shares. The foregoing does not prohibit gifts to donees or transfers
by will or the laws of descent to heirs or beneficiaries provided that such
donees, heirs and beneficiaries shall be bound by the restrictions set forth
herein. The term "Lock Up Period" shall mean the lesser of (x) 180 days or (y)
the period during which Company officers and directors are restricted by the
managing underwriter from effecting any sales or transfers of the Company's
Common Stock. The Lock Up Period shall commence on the effective date of the
underwritten offering. The obligation of the undersigned to abide by this
paragraph shall be operative only if the Company's executive officers are
similarly bound.
4. The undersigned represents and warrants that the undersigned is a
bona fide resident of, and is domiciled in _______________.
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5. Accredited Status. The undersigned represents and warrants as
follows (CHECK IF APPLICABLE):
_______ A. The undersigned is an individual with a net worth, or
a joint net worth together with his or her spouse, in
excess of $1,000,000. (In calculating net worth, you
may include equity in personal property and real
estate, including your principal residence, cash,
short-term investments, stock and securities. Equity
in personal property and real estate should be based
on the fair market value of such property minus debt
secured by such property.)
_______ B. The undersigned is an individual with income in
excess of $200,000 in each of the prior two years and
reasonably expects an income in excess of $200,000 in
the current year.
________ C. The undersigned is an individual who, with his or her
spouse, had joint income in excess of $300,000 in
each of the prior two years and reasonably expects
joint income in excess of $300,000 in the current
year.
________ D. The undersigned is a director or executive officer of
RocketChips, Inc.
________ E. The undersigned, if other than an individual, is an
entity all of whose equity owners meet one of the
tests set forth in (A) through (D) above.
________ F. The undersigned is an entity, and is an "Accredited
Investor" as defined in Rule 501(a) of Regulation D
under the Act. This representation is based on the
following (check one or more, as applicable):
________ 1. The undersigned (or, in the case of
a trust, the undersigned trustee)
is a bank or savings and loan
association as defined in Sections
3(a)(2) and 3(a)(5)(A),
respectively, of the Act acting
either in its individual or
fiduciary capacity.
________ 2. The undersigned is an insurance
company as defined in section 2(13)
of the Act.
________ 3. The undersigned is an investment
company registered under the
Investment Company Act of 1940 or a
business development company as
defined in Section 2(a)(48) of that
Act.
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________ 4. The undersigned is a Small Business
Investment Company licensed by the
United States Small Business
Administration under Section 301(c)
or (d) of the Small Business
Investment Act of 1958.
________ 5. The undersigned is an employee
benefit plan within the meaning of
Title I of the Employee Retirement
Income Security Act of 1974
("ERISA") and either (check one or
more, as applicable):
_____ a. the investment decision is
made by a plan fiduciary,
as defined in Section
3(21) of ERISA, which is
either a bank, savings and
loan association,
insurance company, or
registered investment
advisor; or
_____ b. the employee benefit plan
has total assets in excess
of $5,000,000; or
_____ c. the plan is a
self-directed plan with
investment decisions made
solely by persons who are
"Accredited Investors" as
defined under the Act.
________ 6. The undersigned is a private
business development company as
defined in Section 202(a)(22) of
the Investment Advisors Act of
1940.
________ 7. The undersigned has total assets in
excess of $5,000,000, was not
formed for the specific purpose of
acquiring Shares of the Company and
is one or more of the following
(check one or more, as
appropriate):
_____ a. an organization described
in Section 501(c)(3) of
the Internal Revenue Code;
or
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_____ b. a corporation; or
_____ c. a Massachusetts or similar
business trust; or
_____ d. a partnership.
________ 8. The undersigned is a trust with
total assets exceeding $5,000,000
which was not formed for the
specific purpose of acquiring
Shares of the Company and whose
purchase is directed by a person
who has such knowledge and
experience in financial and
business matters that the
undersigned is capable of
evaluating the merits and risks of
the investment in the Shares.
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SIGNATURE PAGE
Dated: ______________________, 2000.
------------------------------------
Full Name Full Name
------------------------------------
Signature (include title, if entity) Signature (include title, if entity)
Type of Entity (if applicable):
_____ Corporation _____ Partnership
_____ Other __________________________
(specify)
Type of Entity (if applicable):
_____ Corporation _____ Partnership
_____ Other __________________________
(specify)
------------------------------------
Address Address
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Tax Identification or Social Tax Identification or Social
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C-7
<PAGE>
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JACK D. ASHABRANNER II )
)
PLAINTIFF, )
) CASE NO. H-98-1271
VS. ) JURY TRIAL DEMANDED
)
CORPORATE EXPRESS DELIVERY )
SYSTEMS, INC. f/k/a/ DELIVERY )
SYSTEMS, INC., CORPORATE )
DELIVERY SYSTEMS-SOUTHWEST, )
INC., f/k/a DISTRIBUTION )
SOLUTIONS, INC. )
DEFENDANTS.
AMENDMENT TO MUTUAL RELEASE AND CONTRACT OF SETTLEMENT
1. The parties to this Amendment to the Mutual Release and Contract of
Settlement signed June 20, 2000 (the "Amended Agreement") are Jack D.
Ashabranner II ("Ashabranner") and UST Delivery Systems, Inc., f/k/a Corporate
Express Delivery Systems, Inc., f/k/a U. S. Delivery Systems, Inc., ("UST")
(Ashabranner and UST are collectively referred to herein as the "Parties") and
United Shipping & Technology, Inc. a Utah Corporation ("USTI"), parent
corporation of UST.
2. The Parties agree to amend the Mutual Release and Contract of
Settlement signed June 20, 2000 (the "Agreement") in the following respects:
a. The first sentence of Paragraph 3(d) of the Agreement is
amended to read as follows:
"Within five (5) business days after the execution of the
Amendment to Mutual Release and Contract of Settlement USTI
will issue and deliver to American Stock Transfer and Trust
Company ("Escrow Agent"), for the benefit of Ashabranner and L
& S, jointly, 100,000 shares of USTI common stock, par value
$.0004 per share (hereafter the "Stock")."
<PAGE>
b. Paragraph 3(e) of the Agreement is amended to read as follows:
"e. Monthly Payments by USTI
In the event the Registration Statement is not declared
effective by the SEC on or before August 8, 2000, such that
all restrictions on the resale of the Stock to the public
shall be immediately removed and the Stock transferred from
the Escrow Agent to Ashabranner and L & S (the "Transfer"),
Ashabranner and L & S shall be entitled to receive interest
payable monthly (the "Monthly Payment") on the principal sum
of $550,000, calculated at an annual rate equal to the prime
rate of interest charged by the Bank of America, plus one
percent (1%) (based upon a 365-day year), commencing with the
execution date hereof and continuing from month to month until
the date this Agreement is terminated by Ashabranner (the
"Termination date") or the date the Transfer takes place,
whichever occurs first. The first Monthly Payment of interest
for the period from the date of execution hereof until July
31, 2000, shall be due and payable on or before the tenth day
of August, 2000, and any additional Monthly Payments due
thereafter shall be due and payable on or before the tenth day
of each month following the month for which interest is due.
If the Transfer or Termination date fall before the end of a
month, the interest due shall be prorated accordingly, and due
and payable within ten days following the Transfer or
Termination Date. Such Monthly Payments shall be payable by
check, cashier's check or wire transfer. UST shall be deemed
in default of this provision only if UST fails to pay any
interest installment within 5 days after receipt of written
notice of nonpayments from either Ashabranner or L & S."
c. Paragraph 3(g) of the Agreement is amended to read as follows:
"g. Termination by Ashabranner
"At any time after August 31, 2000, but prior to the effective
date of the registration Statement, Ashabranner may, upon
written notice to the Escrow Agent and UST, declare this
Agreement terminated. In the event this Agreement is
terminated by Ashabranner:
(i) The Order of Dismissal shall be returned to
Ashabranner; the restrictions of Paragraph
3(a)(ii) are terminated and parties shall
inform the Court that this Agreement has
terminated:
(ii) The $50,000 cash payout made by UST pursuant
to Paragraph 3(c) and all Monthly Payments
of interest due hereunder as of the
Termination Date shall be retained by
Ashabranner as liquidated damages, but such
amount shall be deemed a credit against any
amount recovered by Ashabranner as a result
of a judicial determination of the
Litigation; and
<PAGE>
(iii) The releases of the Parties under sections 4
and 5 hereof shall be null and void."
3. This Amended Agreement may be executed in multiple counterparts,
each of which when fully signed shall constitute an original document.
Signed on the 31st day of July, 2000
UST DELIVERY SERVICES, INC. UNITED SHIPPING & TECHNOLOGY, INC.
By: By:
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Title: Title:
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