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
August 24, 1998
Date of Report
(Date of Earliest Event Reported)
U S Jet, Inc.
(Exact Name of Registrant as Specified in its Charter)
Nevada 33-8067-NY 84-1422609
(State or other (Commission File No.) (IRS Employer I.D. No.)
Jurisdiction
111 Airport Road
Butte, Montana 59701
(Address of Principal Executive Offices)
Registrant's Telephone Number
406-494-7512
American Coal Corporation
1969 West North Temple
Salt Lake City, Utah 84116
(Former Name or Former Address if changed Since Last Report)
Item 1. Changes in Control of Registrant.
(a) Pursuant to an Agreement and Plan of Merger dated August 24,
1998 (the "Plan"), among the Registrant; U S Jet, Inc., a Delaware corporation
("U S Jet"); and all of the stockholders of U S Jet (the "U S Jet
Stockholders"), the U S Jet Stockholders became the controlling stockholders
of the Registrant in a transaction viewed as a reverse merger. The Registrant
was the surviving corporation under the Plan. The Plan was treated as a
"reorganization" for tax purposes and a "pooling of interests" for accounting
purposes, and the effective date of the Plan was August 27, 1998, the date
when the Certificate of Merger was filed with the Secretaries of State of
Delaware (August 25, 1998) and Nevada (August 27, 1998).
The Plan was adopted, ratified and approved by the Board of
Directors and persons who owned a majority of the outstanding voting
securities of the Registrant, and by the Board of Directors of U S Jet and all
of the U S Jet Stockholders.
The U S Jet Stockholders exchanged 100% of the outstanding securities of U S
Jet for 10,200,000 post-split (see below) "restricted securities" of the
Registrant's common stock.
The U S Jet Stockholders "control" of the Registrant is by stock
ownership and/or service as a director or an executive officer of the
Registrant. See the table below under Paragraph (b) of this Item.
The former controlling persons of the Registrant were Dannette
Uyeda, President and Director; and Jennifer Ngo, Secretary and Director.
The Plan provided:
1. A 100 for one pre-Plan reverse split of the common stock of
the Registrant, while retaining the authorized common shares at 300,000,000
and the par value at one mill ($0.001) per share, with appropriate adjustments
being made in the additional paid in capital and stated capital accounts of
the Registrant; provided, however, that no stockholder, based upon a per
stock certificate of record basis on the closing of the Plan, shall have
current holdings reduced to less than 100 shares, and those stockholders
currently holding less than 100 shares will not be affected by the reverse
split; which reduced the pre-Plan outstanding voting securities from 9,900,000
to 103,758, taking into account the rounding provided in the Plan;
2. For the merger of U S Jet with and into the Registrant;
3. The issuance of 10,200,000 "post-split" "restricted
securities" of the Registrant's common stock;
4. The Resignation of the directors and executive officers of
the Registrant;
5. The election of the directors and executive officers of U S
Jet as directors and executive officers of the Registrant;
6. Amended and Restated Articles of Incorporation of the
Registrant were filed, changing the name of the Registrant to "U S Jet, Inc.,"
adding preferred stock to the authorized capital and various other provisions
deemed required for the intended operations of the Registrant as a successor
to U S Jet's business operations; and
7. The issuance of 995,401 post-split shares of common stock of
the Registrant to certain persons for services rendered for or on behalf of
the Registrant and/or in connection with the negotiation, review and
completion of the Plan. 695,401 of these securities were "restricted
securities," and 300,000 of these securities are to be issued pursuant to a
written compensation agreement and registered under an S-8 Registration
Statement. Further information concerning the recipients of these securities
is contained in the Plan and its exhibits. See Item 7, Agreement and Plan of
Merger, Exhibit K.
Accompanying this Report is a copy of the Plan, including all
material exhibits and related instruments, which, by this reference, is
incorporated herein; the foregoing summary is modified in its entirety by such
reference. See Item 7.
(b) The following table contains information regarding share
holdings of the Registrant's current directors and its executive officers and
those persons or entities who beneficially own more than 5% of the
Registrant's common stock, after taking into account the completion of the
Plan, to wit:
Amount and Nature Percent
of Beneficial of
Name Title Ownership Class
MANAGEMENT
Kenneth R. DeBree Chairman, CEO 5,300,000 46.9%
and President
Bill Markovich, Jr. Treasurer &
Director 300,000 2.6%
L. William Hegland Executive VP, CFO, 300,000 2.6%
& Director
Johnny Chao Senior VP & Director 50,000 .4%
All directors and executive officers
as a group (4) 5,900,000 52.6%
FIVE PERCENT STOCKHOLDERS (Not included in Management)
Paul A. Price* 4,000,000 35.4%
*These shares are held in the name of the Price Family Limited
Partnership; Paul A. Price is the General Partner.
Item 2. Acquisition or Disposition of Assets.
(a) See Item 1.
The consideration exchanged under the Plan was negotiated at "arms
length" and the Board of Directors of the Registrant used criteria used in
similar proposals involving the Registrant in the past, including the relative
value of the assets of the Registrant; its present and past business
operations; the future potential of U S Jet; its management; and the potential
benefit to the stockholders of the Registrant. The Board of Directors
determined that the consideration for the exchange was reasonable, under these
circumstances.
No director, executive officer or controlling person of the
Registrant had any direct or indirect interest in U S Jet prior to the
completion of the Plan.
(b) The Registrant intends to continue the business operations
conducted and intended to be conducted by U S Jet, and which are described
below under the caption Business.
Also see the unaudited financial statements (balance sheet and
income statement for the period ended June 30, 1998)of U S Jet, which
accompanied the Plan as an exhibit, in Item 7, Agreement and Plan of Merger,
Exhibit E.
PRELIMINARY NOTES REGARDING FORWARD-LOOKING STATEMENTS
ALL FORWARD-LOOKING STATEMENTS CONTAINED HEREIN ARE DEEMED BY THE COMPANY TO
BE COVERED BY AND TO QUALIFY FOR THE SAFE HARBOR PROTECTION PROVIDED BY THE
PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995 (THE "1995 ACT").
SHAREHOLDERS AND PROSPECTIVE SHAREHOLDERS SHOULD UNDERSTAND THAT SEVERAL
FACTORS GOVERN WHETHER ANY FORWARD-LOOKING STATEMENT CONTAINED HEREIN WILL BE
OR CAN BE ACHIEVED. ANY ONE OF THOSE FACTORS COULD CAUSE ACTUAL RESULTS TO
DIFFER MATERIALLY FROM THOSE PROJECTED HEREIN. THESE FORWARD-LOOKING
STATEMENTS INCLUDE PLANS AND OBJECTIVES OF MANAGEMENT FOR FUTURE OPERATIONS,
INCLUDING PLANS AND OBJECTIVES RELATING TO THE PRODUCTS AND THE FUTURE
ECONOMIC PERFORMANCE OF THE COMPANY. ASSUMPTIONS RELATING TO THE FOREGOING
INVOLVE JUDGMENTS WITH RESPECT TO, AMONG OTHER THINGS, FUTURE ECONOMIC,
COMPETITIVE AND MARKET CONDITIONS, FUTURE BUSINESS DECISIONS, AND THE TIME AND
MONEY REQUIRED TO SUCCESSFULLY COMPLETE DEVELOPMENT PROJECTS, ALL OF WHICH ARE
DIFFICULT OR IMPOSSIBLE TO PREDICT ACCURATELY AND MANY OF WHICH ARE BEYOND THE
CONTROL OF THE COMPANY. ALTHOUGH THE COMPANY BELIEVES THAT THE ASSUMPTIONS
UNDERLYING THE FORWARD-LOOKING STATEMENTS CONTAINED HEREIN ARE REASONABLE, ANY
OF THOSE ASSUMPTIONS COULD PROVE INACCURATE AND, THEREFORE, THERE CAN BE NO
ASSURANCE THAT THE RESULTS CONTEMPLATED IN ANY OF THE FORWARD-LOOKING
STATEMENTS CONTAINED HEREIN WILL BE REALIZED. BASED ON ACTUAL EXPERIENCE AND
BUSINESS DEVELOPMENTS, THE IMPACT OF WHICH MAY CAUSE THE COMPANY TO ALTER ITS
MARKETING, CAPITAL EXPENDITURE PLANS OR OTHER BUDGETS, WHICH MAY IN TURN
AFFECT THE COMPANY'S RESULTS OF OPERATIONS IN LIGHT OF THE SIGNIFICANT
UNCERTAINTIES INHERENT IN THE FORWARD-LOOKING STATEMENTS INCLUDED HEREIN, THE
INCLUSION OF ANY SUCH STATEMENT SHOULD NOT BE REGARDED AS A REPRESENTATION BY
THE COMPANY OR ANY OTHER PERSON THAT THE OBJECTIVES OR PLANS OF THE COMPANY
WILL BE ACHIEVED.
Business
The Company, singly and/or through its subsidiaries, holds an air
carrier certificate, an interstate contract motor carrier certificate;
owns a refrigerated warehouse; and leases several airport properties in
Montana. The objective of the Company is to develop and successfully operate
international air cargo and trade operations from its principal logistics
facilities in Montana, where all operations, accounting, training, maintenance
and communication functions are also to be located.
The Company expects to benefit from increases in exports from
Asian and Latin American countries, requiring air transportation services,
that are projected to result from the economic instability in those regions.
The Company has plans to raise additional capital through one or
more private placements of debt and equity securities and a secondary offering
of newly issued common stock.
The anticipated future operations of the Company are highly
dependent on the ability of the Company to raise substantial additional
capital, as to which no assurance can be given.
Properties and Equipment
The Company's principal cargo terminal facilities are located in
Montana, within its 236,000 square foot temperature-controlled logistics and
distribution warehouse facility, which is owned and operated by the Company.
Located within one-quarter mile of the Bert Mooney Airport and within the
economic free trade zone of the Port of Montana, the property is partially
leased to various customers and the remainder is used by the Company,
primarily to process air freight. The Company has a program designed to
modernize and expand the facility to meet the increased need for the Company's
contemplated distribution, material management and warehouse services, which
presently include inventory control, order processing, import/export freight
staging, protective and specialized packing and crating, pick and pack
operations, containerization, consolidation and deconsolidation, and special
handling for perishables, high security materials and heavy-lift equipment.
For import shipments, the Company will provide bonded warehouse services and
Free Trade Zone services. These warehouse and distribution services
complement the other transportation services, including information systems
tools provided by the Company, and form part of the integrated logistics
solutions the Company offers to its customers.
The Company's facilities program anticipates expansion of this
operation into additional buildings to be constructed on adjacent vacant land
according to the Company's specifications. Build-to-suit facilities may also
be constructed for certain of the Company's customers. This facility is
intended to be the prototype for other similar operations in various foreign
locales in the future.
The Company has obtained authority as an interstate contract motor
carrier and has acquired five (5) tractor trucks and several trailers which
are being used to haul interstate freight for customers. The Company has
plans to substantially increase its surface transportation equipment fleet
through the lease and/or purchase of additional tractor trucks and trailers.
The Company has also acquired several existing airport facilities
on land leased at Bert Mooney Airport in Butte, Montana, which include a fixed
base operator, executive offices and hangars which will serve as the Company's
base for maintenance work, parts storage, and flight dispatch operations.
After completion of expansion work presently under consideration, these
airport facilities will support the Company's projected growth in operations
expected to result from the anticipated acquisition and operation of cargo
equipped aircraft.
The Company operates three (3) small aircraft under its air
carrier certificate, all of which are leased by the Company. The Company has
plans to acquire, through lease and/or purchase, a fleet of used Boeing
widebody cargo aircraft, such as models 747 and 727, which will be used to
haul freight for customers on domestic and international routes utilizing a
hub and spoke system based at the Company's Montana facilities.
All of the Company's aircraft loading, unloading, maintenance,
flight operations and ground handling will be accomplished at its Montana
hangar facility, which presently consists of a 12,032 square foot building,
with 9,000 square feet of hangar space, approximately 350,000 square feet of
aircraft ramp space, 1,000 square feet of parts storage, maintenance shop and
work areas and 2,000 square feet of office space for flight operations. The
Company has acquired and maintains a complete inventory of aircraft ground and
cargo handling equipment necessary to meet its current requirements at this
location.
The Bert Mooney Airport has offered the Company significant
expansion space which the Company can employ in the future for additional
hangar and freight handling facilities, and where the Company can perform its
own engine repair and overhaul work and store spare aircraft parts. The
Company's facilities plan anticipates the construction of modern hangar
facilities in this expansion space to accommodate up to two large widebody
aircraft (such as Boeing 747s) simultaneously. The facilities, as expanded
and after regulatory certification, will permit the Company to take advantage
of opportunities to provide third party maintenance and airframe repair work.
Management
The Company is led by an experienced management team, headed by
Captain Kenneth R. DeBree and Maj. Gen. L. William Hegland (USAF, Ret.), who
together have over 50 years of experience in the air cargo industry and whose
collective knowledge of the South and Central American and Asian business
environments will be a key element of the Company's success.
Resumes
Accompanying this Report are professional resumes of Kenneth R.
DeBree and L. William Hegland and brief resumes of the other directors and
executive officers.
Item 3. Bankruptcy or Receivership.
None; not applicable.
Item 4. Changes in Registrant's Certifying Accountant.
Andersen, Andersen & Strong, L.C., Certified Public Accountants,
of Salt Lake City, Utah, audited the financial statements of the Company for
the fiscal years ended June 30, 1998 and 1997; these financial statements
accompanied the Registrant's 10-KSB Annual Report for the year ended June 30,
1998, which was previously filed with the Securities and Exchange Commission.
Galusha, Higgins & Galusha, Missoula, Montana, were engaged on or
about August 25, 1998, by the Board of Directors of the Company, as the
principal accounting firm for the Company.
There were no disagreements between the Company and Anderson,
Anderson & Strong, L.C., whether resolved or not resolved, on any matter of
accounting principles or practices, financial statement disclosure or auditing
scope or procedure, which, if not resolved, would have caused them to make
reference to the subject matter of the disagreement in connection with their
report.
The report of Andersen, Andersen & Strong, L.C. did not contain
any adverse opinion or disclaimer of opinion, and is not qualified or modified
as to uncertainty, audit scope or accounting principles.
During the Company's three most recent calendar years, and since
then, neither Galusha, Higgins & Galusha, nor Andersen, Andersen & Strong,
L.C. has advised the Company that any of the following exists or is
applicable:
(1) That the internal controls necessary for the Company to
develop reliable financial statements do not exist, that
information has come to their attention that has lead them
to no longer be able to rely on management's
representations, or that has made them unwilling to be
associated with the financial statements prepared by
management;
(2) That the Company needs to expand significantly the scope of
its audit, or that information has come to their attention
that if further investigated may materially impact the
fairness or reliability of a previously issued audit report
or the underlying financial statements or any other
financial presentation, or cause them to be unwilling to
rely on management's representations or be associated with
the Company's financial statements for the foregoing reasons
or any other reason; or
(3) That they have advised the Company that information has come
to their attention that they have concluded materially
impacts the fairness or reliability of either a previously
issued audit report or the underlying financial statements
for the foregoing reasons or any other reason.
During the Company's three most recent calendar years and since
then, the Company has not consulted Galusha, Higgins & Galusha, regarding the
application of accounting principles to a specified transaction, either
completed or proposed; or the type of audit opinion that might be rendered on
the Company's financial statements or any other financial presentation
whatsoever. This change of accountants was made because of the proximity of
Galusha, Higgins & Galusha, to the new principal executive offices of the
Company.
The Company has provided Andersen, Andersen & Strong, L.C. with a
copy of the disclosure provided under this caption of this Report, and has
advised it to provide the Company with a letter addressed to the Securities
and Exchange Commission as to whether it agrees or disagrees with the
disclosures made herein. A copy of its response is attached hereto and
incorporated herein by this reference. See Item 7 of this Report.
Item 5. Other Events.
See Item 1.
Item 6. Resignations of Directors and Executive Officers.
The pre-Plan directors and executive officers of the Company
resigned and designated the directors and executive officers of U S Jet to
serve in the same capacities in which they served under U S Jet, until the
next respective annual meetings of the stockholders and the Board of Directors
and until their respective successors are elected and qualified or until their
prior resignations or terminations. See Item 1(a).
Item 7. Financial Statements and Exhibits.
(a) Financial Statements of Businesses Acquired.
See Agreement and Plan of Merger, Exhibit E, below; audited
financial statements of U S Jet will be filed within 75 days of the date of
this Report.
(b) Pro Forma Financial Information.
Pro Forma Combined Balance Sheet (Unaudited) of American Coal
Corporation and U S Jet, Inc. as of June 30, 1998, based upon the financial
statements below, Agreement and Plan of Merger, Exhibits C and E.
Pro Forma Combined Notes to Balance Sheet (Unaudited)
Exhibits.
Exhibit
Description of Exhibit* Number
Agreement and Plan of Merger 2
Exhibit A - U S Jet Stockholders
Exhibit B - Amended and Restated Articles of
Incorporation
Exhibit B-1 - Amended Bylaws
Exhibit C - American Coal Corporation Financial
Statements for the years ended
June 30, 1998 and 1997
Exhibit D - Exceptions to American Coal Corporation
Financial Statements
Exhibit E - U S Jet Financial Statements, consisting
of an Unaudited Balance Sheet and
Income Statement for the period ended
June 30, 1998
Exhibit F - Exceptions to U S Jet, Inc. Financial
Statements
Exhibit G - Investment Letter
Exhibit H - Compliance Certificate of American Coal
Corporation
Exhibit I - Compliance Certificate of
U S Jet, Inc.
Exhibit K - Consultant Shares
Certificate of Amendment to Articles of 3
Incorporation effecting reverse split
Dissenters' Rights 4
Letter regarding change in certifying accountant 16
Resumes 99
Documents Incorporated by Reference: None
* Summaries of any exhibit are modified in their
entirety by this reference to each exhibit.
Item 8. Change in Fiscal Year.
None; not applicable.
Item 9. Sales of Equity Securities Pursuant to Regulation S.
None; not applicable.
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of
1934, the Registrant has duly caused this Report to be signed on its behalf by
the undersigned hereunto duly authorized.
U S JET, INC.
Date: 9/4/98 By /s/ Kenneth R. DeBree
President and Director
<PAGE>
U S JET, INC. AND
AMERICAN COAL CORPORATION
INTRODUCTION TO UNAUDITED PRO FORMA
COMBINING FINANCIAL STATEMENTS
Effective August 27, 1998, U S Jet, Inc. ("USJ"), a Delaware
corporation; all of the stockholders of USJ; and American Coal Corporation
("ACC") entered into an Agreement and Plan of Merger (the "Agreement").
ACC was an inactive public company that has been dormant since
1990. ACC has been exploring business opportunities in an attempt to enter
into a transaction with a company where the controlling interest in ACC would
be acquired by the successor company.
Pursuant to the Agreement, ACC conducted a 100 for one reverse
split of its shares and all of the outstanding shares of USJ were exchanged
for 10,200,000 shares of validly issued, fully paid and non-assessable common
stock of ACC (approximately 88% of the issued and outstanding shares of ACC,
after giving effect to the reverse split and the issuance of 995,401 post-
split shares to certain persons for services rendered in connection with the
transaction).
For accounting purposes, the transaction has been recorded as if
USJ acquired ACC, a reverse acquisition. Subsequent to the business
combination, the current Board of Directors of USJ will control a majority of
the common stock of ACC. As a result of the large number of shares being
issued in connection with the transaction, the fact that the shares represent
unregistered securities, and the market for the securities is thin, the fair
value of USJ's net assets was used to determine the value of the shares
exchanged.
The attached unaudited pro forma condensed balance sheet as of
June 30, 1998, and the condensed statements of operations for the six months
then ended give effect to the Agreement. The pro forma combining statements
of operations assume that the transaction took place as of the beginning of
the period presented.
The pro forma combining financial information is presented for
illustrative purposes only and is not necessarily indicative of the operating
results that would have occurred had the transaction been consummated at the
beginning of the period presented, nor is it necessarily indicative of future
operating results.
The pro forma combining financial information should be read in
conjunction with the historical unaudited financial statements and the related
notes thereto of USJ, and the historical financial statements and related
notes thereto of ACC, included in ACC's annual reports filed on Form 10-KSB as
of and for the years ended June 30, 1997, and June 30, 1998.
<TABLE>
U S JET, INC. AND
AMERICAN COAL CORPORATION
PRO FORMA COMBINING BALANCE SHEET (UNAUDITED)
<CAPTION>
Pro Forma
U S Jet ACC Adjustments Combined
<S> <C> <C> <C> <C>
ASSETS
Current Assets:
Cash and Equivalents $ 149,824 $ - $ - $ 149,824
Deposits 182,717 - - 182,717
Accounts Receivable 1,173,979 - - 1,173,979
Inventory 786,629 - - 786,629
Escrowed Funds 120,257 - - 120,257
Utility Deposits 18,000 - - 18,000
Total Current Assets 2,431,406 - - 2,431,406
Property and Equipment:
Real Estate Properties 1,765,749 - - 1,765,749
Support Equipment 320,388 - - 320,388
Aircraft Parts & Rotables 2,500 - - 2,500
Transportation Equip 437,339 - - 437,339
Computer Equipment 535,250 - - 535,250
Office Equipment 59,715 - - 59,715
Other - Tech & Manuals 1,275,351 - - 1,275,351
Total Property and
Equipment 4,396,292 - - 4,396,292
Total assets: $6,827,698 $ - $ - $6,827,698
LIABILITIES AND STOCKHOLDER'S EQUITY
Current Liabilities:
Accounts Payable $ 96,379 $ 9,348 $(9,348) $ 96,379
Notes Payable 1,012,554 - - 1,012,554
Taxes Payable 12,197 - - 12,197
Total Current
Liabilities 1,121,130 9,348 $(9,348) 1,121,130
Long Term Debt
Notes Payable 1,888,014 - - 1,888,014
Long Term Debt 1,977,358 - - 1,977,358
Total Liabilities: $ 4,986,502 $ 9,348 $(9,348) $4,986,502
Stockholder's equity:
Capital stock 877,007 9,900(1) - 886,907
Additional paid in capital 1,592,273 47,801 9,348(2) 1,649,422
Retained earnings (accumulated
deficit) (628,084) (67,049) (695,133)
Total Stockholders'
Equity: 1,841,196(3) (9,348) 9,348(2) 1,841,196
Total Liabilities and
Stockholders' Equity: $6,827,698 $(9,348) $9,348(2) $6,827,698
</TABLE>
(1) In connection with the transaction, ACC conducted a 100 for
one reverse split of its shares, issued 10,200,000 post-split shares to the
stockholders of USJ, and issued 995,401 post-split shares to certain persons
for services rendered in connection with the transaction.
(2) The accumulated deficit of ACC of ($9,348) was eliminated
against additional paid-in capital.
(3) All common and preferred stock of USJ was eliminated.
<TABLE>
U S JET, INC. AND
AMERICAN COAL CORPORATION
PRO FORMA COMBINING STATEMENT OF OPERATIONS (UNAUDITED)
<CAPTION>
Pro Forma
U S Jet ACC Adjustments Combined
<S> <C> <C> <C> <C>
INCOME
Sales $ 6,897,741 $ - $ - $ 6,897,741
Cost of Goods (5,904,733) - - (5,904,733)
Gross Profit from Sales: 993,008 - - 993,008
Rental Income 48,614 - - 48,614
Misc. Service Income 13,892 - - 13,892
Transportation Income 6,122 - - 6,122
Other Revenue:
Interest Income 10,110 - - 10,110
Purchase Discounts 102,735 - - 102,735
Total Income 1,174,481 - - 1,174,481
EXPENSES
Operating Expenses:
Advertising 3,816 - - 3,816
Accounting 11,058 5,773 (5,773) 11,058
Amortization 841 - - 841
Bank Charges 735 - - 735
NSF Checks 1,506 - - 1,506
Computer supplies/software 13,210 - - 13,210
Consulting Fees 8,904 - - 8,904
Contributions 3,747 - - 3,747
Contract Labor 20,556 - - 20,556
Dues & Subscriptions 2,083 - - 2,083
Depreciation 21,954 - - 21,954
Drug testing - employees 1,095 - - 1,095
Equipment Rentals 6,190 - - 6,190
Fixed base operator expenses 100,194 - - 100,194
Fire equipment & supplies 1,388 - - 1,388
Freight (4,689) - - (4,689)
Insurance - general 50,789 - - 50,789
Insurance - employee group 65,262 - - 65,262
Interest 174,610 - - 174,610
Legal 7,709 - - 7,709
Misc. 11,373 - - 11,373
Office Supplies 10,776 - - 10,776
Printing 321 - - 321
Postage 4,726 - - 4,726
Rent 65,136 - - 65,136
Repairs & maintenance 14,064 - - 14,064
Salaries 658,266 - - 658,266
Sales Expense 10,309 - - 10,309
Security & alarm 2,069 - - 2,069
Taxes & licenses 5,636 - - 5,636
Taxes - payroll 90,823 - - 90,823
Taxes - property 1,941 - - 1,941
Telephone 24,319 - - 24,319
Travel & entertainment 52,732 - - 52,732
Utilities 90,458 - - 90,458
Vehicles - leased 90,608 - - 90,608
Vehicle licenses 903 - - 903
Vehicle repairs 54,564 - - 54,564
Gas, tires & oil 63,375 - - 63,375
Warehouse supplies 20,972 - - 20,972
Workers compensation insurance 3,324 - - 3,324
Loss before taxes (603,129) (5,773) 5,773 (603,129)
Provision for income taxes - - - -
Net loss $ (603,129) $(5,773) $5,773 $(603,129)
</TABLE>
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT (the "Plan" or "Merger") is made this 14th day of August,
1998, by and between American Coal Corporation, a Nevada corporation
("American Coal"); U S Jet, Inc., a Delaware corporation ("U S Jet"); and all
of the common and preferred stockholders of U S Jet listed in Exhibit A hereof
who execute and deliver a copy of the Plan (collectively, the "U S Jet
Stockholders");
W I T N E S S E T H :
WHEREAS, the respective Boards of Directors of American Coal and U S Jet
have deemed it advisable and in the best interests of their respective
stockholders and have adopted certain resolutions whereby U S Jet will merge
into American Coal in a tax free merger pursuant to the provisions of Section
368(a)(1)(A) of the Internal Revenue Code and the applicable provisions of the
Nevada Revised Statutes and the Delaware General Corporation Law, and whereby
the U S Jet Stockholders will receive shares of common stock of American Coal
in consideration of such merger;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreement of the parties hereto, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, IT IS AGREED,
to-wit:
ARTICLE I. PLAN OF MERGER
1.1. Merger and Surviving Corporation. U S Jet will merge into
American Coal, with American Coal being the surviving corporation (the
"Surviving Corporation"); the separate existence of U S Jet shall cease, and
the name of the Surviving Corporation shall be changed to "U S Jet, Inc." At
the closing of the Merger (the "Closing"), the Articles of Incorporation of
American Coal shall be restated in the form set forth in the attached Exhibit
B, and shall thereafter serve as the Articles Incorporation of the Surviving
Corporation; at the Closing, the Bylaws of American Coal shall be restated in
the form set forth in the attached Exhibit B-1, and shall thereafter serve as
the Bylaws of the Surviving Corporation.
1.2. Share Conversion. Subject to the amendment to the Articles of
Incorporation of the Surviving Corporation outlined in Section 1.8 hereof,
each share of issued, outstanding or subscribed common stock or preferred
stock of U S Jet (collectively, the "U S Jet Shares") shall, upon the
effective date of the Plan, be converted into 10,200,000 post-split shares of
common stock of American Coal, as outlined in Exhibit A; all fractional shares
shall be rounded to the nearest whole share.
1.3. Survivor's Succession to Corporate Rights. The Surviving
Corporation shall thereupon and thereafter possess all the rights, privileges,
powers and franchises as well of a public as of a private nature, and be
subject to all of the restrictions, disabilities and duties of U S Jet; and
all and singular, the rights, privileges, powers and franchises of U S Jet,
and all property, real, personal and mixed, and all debts due to U S Jet on
whatever account, as well for stock subscriptions as all other things in
action or belonging to U S Jet shall be vested in the Surviving Corporation;
and all property, rights, privileges, powers and franchises, and all and every
other interest shall be thereafter as effectually the property of the
Surviving Corporation as they were of U S Jet, and the title to any real
estate vested by deed or otherwise in U S Jet shall not revert or be in any
way impaired by reason of the Plan; but all rights of creditors and all liens
upon any property of U S Jet shall be preserved unimpaired, and all debts,
liabilities and duties of U S Jet shall thenceforth attach to the Surviving
Corporation and may be enforced against it to the same extent as if said
debts, liabilities and duties had been incurred or contracted by it.
1.4. Survivor's Succession to Corporate Acts, Plans, Contracts, Etc.
All corporate acts, plans, policies, contracts, approvals and authorizations
of U S Jet and its stockholders, its Board of Directors, committees elected or
appointed by the Board of Directors, officers and agents, which were valid and
effective immediately prior to the effective time of the Plan, shall be taken
for all purposes as the acts, plans, policies, contracts, approvals and
authorizations of the Surviving Corporation and shall be as effective and
binding thereon as the same were with respect to U S Jet. The employees of U
S Jet shall become the employees of the Surviving Corporation and continue to
be entitled to the same rights and benefits which they enjoyed as employees of
U S Jet. The federal tax identification number of U S Jet shall continue to
be used as the employer identification number of the Surviving Corporation.
1.5. Survivor's Rights to Assets, Liabilities, Reserves, Etc. The
assets, liabilities, reserves and accounts of U S Jet shall be recorded on the
books of the Surviving Corporation at the amounts at which they, respectively,
shall then be carried on the books of U S Jet, subject to such adjustments or
eliminations of inter-company items as may be appropriate in giving effect to
the Plan, or as required by generally accepted accounting principles.
1.6. Directors and Executive Officers. On Closing, the present
directors and executive officers of U S Jet shall be designated as directors
and executive officers of the Surviving Corporation, until the next respective
annual meetings of the stockholders and Board of Directors of the Surviving
Corporation, and until their respective successors shall be elected and
qualified or until their respective prior resignations or terminations, and
the current directors and executive officers of the Surviving Corporation
shall resign, in seriatim.
1.7. Principal Office. The principal executive office of the Surviving
Corporation shall be located at 111 Airport Road, Butte, Montana 59701.
1.8. Amendments to Articles of Incorporation of American Coal. The
Articles of Incorporation of American Coal shall be amended to change its name
to "U S Jet, Inc."; to effect a pre-Plan reverse split of its outstanding
voting securities on a basis of 100 for one, while retaining the current
authorized capital and par value, with appropriate adjustments in the stated
capital accounts and capital surplus accounts of American Coal; provided,
however, that no stockholder, based upon a per stock certificate of record
basis on the closing (the "Closing") of the Plan, shall have current holdings
reduced to less than 100 shares, and those stockholders currently holding less
than 100 shares will not be affected by the reverse split; and provided,
further, however, that all fractional shares shall be otherwise rounded up to
the nearest whole share (shares estimated for rounding to 100 shares or
otherwise, amounting to approximately 4,599 shares, shall be deducted from the
shares of common stock to be issued to brokers or finders in accordance with
Section 11.4 and Exhibit K hereto); and to adopt and restate the articles set
forth in Exhibit B.
1.9. Adoption. The Plan shall be adopted by the Board of Directors of
and persons owning in excess of 50% of the outstanding voting securities of
American Coal, and by the Board of Directors of U S Jet and all of the U S Jet
Stockholders.
1.10. Dissenters' Rights and Notification. The Surviving Corporation
shall give the required notification to dissenting stockholders of American
Coal pursuant to the provisions of the Nevada Revised Statutes, and shall be
responsible to such dissenting stockholders as provided therein. Since the
Plan requires the affirmative vote of 100% of the U S Jet Stockholders, no
dissenters' rights are afforded the U S Jet Stockholders under the Delaware
General Corporation Law.
1.11. Delivery of Certificates by the U S Jet Stockholders. The
transfer of the U S Jet Shares by the U S Jet Stockholders shall be effected
by the delivery to American Coal or its transfer agent of certificates
representing the U S Jet Shares, endorsed in blank or accompanied by stock
powers executed in blank, with all signatures witnessed or guaranteed to the
satisfaction of American Coal and U S Jet and with any necessary transfer
taxes and other revenue stamps affixed (which are usually not applicable) and
acquired at the expense of the
U S Jet Stockholders, and on receipt thereof to the satisfaction of the
Surviving Corporation, a stock certificate representing shares in American
Coal as outlined in Exhibit A shall be issued and delivered to each of the U S
Jet Stockholders; as a condition to the exchange of the U S Jet Shares,
American Coal and the Surviving Corporation shall require the U S Jet
Stockholders to execute and deliver a transmittal letter (each an "Investment
Letter") as outlined in Section 4.12 hereof, acknowledging, among other
things, the prior receipt of certain material information respecting American
Coal and that the shares of American Coal to be received in exchange for the U
S Jet Shares are "unregistered" and "restricted" securities which have not
been registered with the Securities and Exchange Commission or any state
regulatory agency, and which must be so registered prior to public sale by the
U S Jet Stockholders, unless an exemption from such registration is available
for any such sale.
1.12. Further Assurances. At the Closing and from time to time
thereafter, the parties shall execute such additional instruments and take
such other action as may be reasonably required or necessary to carry out the
terms and provisions hereof.
1.13. Effective Date. The effective date of the Plan (the "Effective
Date") shall be the date when the parties' Agreement of Merger is filed and
accepted by the Secretary of State of the State of Nevada and the Secretary of
State of the State of Delaware, and at such time as all of the applicable
provisions of the Nevada Revised Statutes and the Delaware General Corporation
Law have been satisfied.
ARTICLE II. CLOSING
2.1. The Closing contemplated by Section 1.1 shall be held at the
principal executive offices of American Coal, at 1969 West North Temple, Salt
Lake City, Utah, not later than ten (10) days following the date of this
Plan, unless another place or time is agreed upon in writing by the parties.
The Closing may be accomplished by express mail or other courier service,
conference telephone communications or as otherwise agreed by the respective
parties or their duly authorized representatives.
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF AMERICAN COAL
American Coal represents and warrants, and covenants with, U S Jet and
the U S Jet Stockholders as follows:
3.1. Corporate Status. American Coal is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada
and is licensed or qualified as a foreign corporation in all states in which
the nature of its business or the character or ownership of its properties
makes such licensing or qualification necessary. American Coal is a publicly
held company, having previously and lawfully offered and sold a portion of its
securities in accordance with applicable federal and state securities laws,
rules and regulations. There is presently no public market for these or any
other securities of American Coal, though the shares of common stock of
American Coal are currently quoted on the OTC Bulletin Board of the NASD under
the Symbol "AICL."
American Coal has no subsidiaries.
3.2. Capitalization. The authorized capital stock of American Coal
consists of 300,000,000 shares of common stock, having a par value of $0.001
per share. As of the date of this Plan, 9,900,000 shares of common stock are
issued and outstanding, all duly authorized, validly issued, fully paid and
non-assessable; provided, that after giving effect to the reverse stock split
provided for in this Plan, there will be approximately 99,159 shares of common
stock issued and outstanding (and an additional 4,599 shares as a result of
rounding, which 4,599 shares shall be deducted from the shares authorized to
be issued to finders and others under Section 11.4 and Exhibit K hereto).
Except as indicated herein, there are no outstanding options, warrants or
calls pursuant to which any person has the right to purchase any authorized
and unissued capital stock of American Coal.
3.3. Financial Statements. The financial statements of American Coal
furnished to the U S Jet Stockholders and U S Jet, consisting of audited
financial statements for the years ended June 30, 1998 and 1997, attached
hereto as Exhibit C and incorporated herein, are correct and fairly present
the financial condition of American Coal at such dates and for the years
involved; such statements were prepared in accordance with generally accepted
accounting principles consistently applied, and no material change has
occurred in the matters disclosed therein, except as indicated in Exhibit D,
which is attached hereto and incorporated herein by reference. Such financial
statements do not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements made, in light
of the circumstances under which they were made, not misleading.
3.4. Undisclosed Liabilities. American Coal has no liabilities of any
nature except to the extent reflected or reserved against in its balance
sheets, whether accrued, absolute, contingent or otherwise, including, without
limitation, tax liabilities and interest due or to become due, except as set
forth in Exhibit D.
3.5. Interim Changes. Since the date of its balance sheets, except as
set forth in Exhibit D, there have been no (a) changes in financial condition,
assets, liabilities or business of American Coal which, in the aggregate, have
been materially adverse; (b) damages, destruction or losses of or to property
of American Coal, payments of any dividend or other distribution in respect of
any class of stock of American Coal, or any direct or indirect redemption,
purchase or other acquisition of any class of any such stock; or (c) increases
paid or agreed to in the compensation, retirement benefits or other
commitments to employees.
3.6. Title to Property. American Coal has good and marketable title to
all properties and assets, real and personal, reflected in its balance sheets,
and the properties and assets of American Coal are subject to no mortgage,
pledge, lien or encumbrance, except for liens shown therein or in Exhibit D,
with respect to which no default exists.
3.7. Litigation. There is no litigation or proceeding pending, or to
the knowledge of American Coal, threatened, against or relating to American
Coal, its properties or business, except as set forth in Exhibit D, that,
individually or in the aggregate, could reasonably be expected to have a
material adverse effect. Further, no officer, director or person who may be
deemed to be an affiliate of American Coal is party to any material legal
proceeding which could have an adverse effect on American Coal (financial or
otherwise), and none is party to any action or proceeding wherein any such
officer, director or person has an interest adverse to American Coal.
3.8. Books and Records. From the date of this Plan to the Closing,
American Coal will (a) give to the U S Jet Stockholders and U S Jet or their
respective representatives full access during normal business hours to all of
its offices, books, records, contracts and other corporate documents and
properties so that the U S Jet Stockholders and U S Jet or their respective
representatives may inspect and audit them; and (b) furnish such information
concerning the properties and affairs of American Coal as the U S Jet
Stockholders and U S Jet or their respective representatives may reasonably
request.
3.9. Tax Returns. American Coal has filed all federal and state income
or franchise tax returns required to be filed or has received currently
effective extensions of the required filing dates.
3.10. Confidentiality. Until the Closing (and thereafter if there is
no Closing), American Coal and its representatives will keep confidential any
information which they obtain from the U S Jet Stockholders or from U S Jet
concerning the properties, assets and business of U S Jet. If the
transactions contemplated by this Plan are not consummated by August 24, 1998,
American Coal will return to U S Jet all written matter with respect to U S
Jet obtained by American Coal in connection with the negotiation or
consummation of this Plan.
3.11. Corporate Authority. American Coal has full corporate power and
authority to enter into this Plan and to carry out its obligations hereunder
and will deliver to the U S Jet Stockholders and U S Jet or their respective
representatives at the Closing a certified copy of resolutions of its Board of
Directors authorizing execution of this Plan by its officers and performance
thereunder.
3.12. Due Authorization. The execution of this Plan and performance
by American Coal hereunder have been duly authorized by all requisite
corporate action on the part of American Coal, and this Plan constitutes a
valid and binding obligation of American Coal and performance hereunder will
not violate any provision of the Articles of Incorporation, Bylaws,
agreements, mortgages or other commitments of American Coal.
3.13. Environmental Matters. American Coal has no knowledge of any
assertion by any governmental agency or other regulatory authority of any
environmental lien, action or proceeding, or of any cause for any such lien,
action or proceeding related to the business operations of American Coal. In
addition, to the best knowledge of American Coal, there are no substances,
past operations, products or conditions which may support a claim or cause of
action against American Coal or any of its current or former officers,
directors, agents or employees, whether by a governmental agency or body,
private party or individual, under any Hazardous Materials Regulations.
"Hazardous Materials" means any oil or petrochemical products, PCB's,
asbestos, urea formaldehyde, flammable explosives, radioactive materials,
solid or hazardous wastes, chemicals, toxic substances or related materials,
including, without limitation, any substances defined as or included in the
definition of "hazardous substances," "hazardous wastes," "hazardous
materials," or "toxic substances" under any applicable federal or state laws
or regulations. "Hazardous Materials Regulations" means any regulations
governing the use, generation, handling, storage, treatment, disposal or
release of hazardous materials, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, the
Resource Conservation and Recovery Act and the Federal Water Pollution Control
Act.
3.14. Access to Information Regarding U S Jet. American Coal
acknowledges that it has been delivered copies of what has been represented to
be documentation containing all material information respecting U S Jet and
its present and contemplated business operations, potential acquisitions,
management and other factors; that it has had a reasonable opportunity to
review such documentation and discuss it, to the extent desired, with its
legal counsel, directors and executive officers; that it has had, to the
extent desired, the opportunity to ask questions of and receive responses from
the directors and executive officers of U S Jet, and with the legal and
accounting firms of U S Jet, with respect to such documentation; and that to
the extent requested, all questions raised have been answered to its complete
satisfaction. American Coal has conducted such investigations and received
such advice as has been necessary to confirm that, as of the date of this
Plan, the share conversion provided in Section 1.2 of the Plan is fair to the
stockholders of American Coal.
3.15. Governmental Approval; Consents. No authorization, license,
permit, franchise, approval, order or consent of, and no registration,
declaration or filing by American Coal with any governmental authority,
domestic or foreign, federal, state or local, is required in connection with
American Coal's execution, delivery and performance of this Plan or the
consummation of the transactions contemplated thereby. No consents of any
other parties are required to be received by or on the part of American Coal
or to enable American Coal to enter into and carry out this Plan.
3.16. No Omission or Untrue Statement. No representation or warranty
made by American Coal to U S Jet in this Plan, or in any certificate of an
American Coal officer required to be delivered to U S Jet pursuant to the
terms of this Plan, contains or will contain any untrue statement of a
material fact, or omits or will omit to state a material fact necessary to
make the statements contained herein or therein not misleading as of the date
hereof and as of the Closing.
3.17. Tax and Accounting Matters. American Coal has not, to its best
knowledge and based upon consultation with its counsel and independent
auditors, taken or agreed to take any action that (without giving effect to
this Plan, the transactions contemplated hereby or actions related thereto, or
any action agreed to be taken by U S Jet, the U S Jet Stockholders or any of
their affiliates) would prevent the Surviving Corporation from accounting for
the business combination to be effected by the Merger as a pooling of
interests for accounting purposes and a "tax free" reorganization for tax
purposes.
ARTICLE IV. REPRESENTATIONS, WARRANTIES AND COVENANTS
OF U S JET AND THE U S JET STOCKHOLDERS
U S Jet and the U S Jet Stockholders represent and warrant to, and
covenant with, American Coal as follows:
4.1. U S Jet Shares. The U S Jet Stockholders are the record and
beneficial owners of all of the U S Jet Shares listed in Exhibit A, free and
clear of adverse claims of third parties; and Exhibit A correctly sets forth
the names, addresses and the number of U S Jet Shares owned by the U S Jet
Stockholders.
4.2. Corporate Status.
a. U S Jet is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and is licensed or
qualified as a foreign corporation in all states in which the nature of its
business or the character or ownership of its properties makes such licensing
or qualification necessary.
b. U S Jet has four wholly owned subsidiaries (the "U S Jet
Subsidiaries"), the operations and liabilities of which are included, on a
consolidated basis, in the financial statements of U S Jet attached hereto.
All representations and warranties contained herein on behalf of U S Jet are
also expressly made for and on behalf of the U S Jet Subsidiaries. The four
subsidiaries are as follows, to-wit: U S Jet Properties, Inc.; U S Jet Airport
Properties, Inc.; U S Jet Office Properties, Inc.; and SDI Acquisition
Corporation, all of which are Montana corporations.
4.3. Capitalization. The authorized capital stock of U S Jet consists
of 1,000,000 shares of common voting stock, $0.001 par value, of which 570,000
shares are issued and outstanding, all fully paid and non-assessable; and
500,000 shares of preferred stock, $0.001 par value, of which 450,000 shares
are issued and outstanding, all fully paid and non-assessable. Except as set
forth in Exhibit F, attached hereto and incorporated herein by reference,
there are no outstanding options, warrants or calls pursuant to which any
person has the right to purchase any authorized and unissued capital stock of
U S Jet.
4.4. Financial Statements. The financial statements of U S Jet
furnished to American Coal, consisting of an unaudited balance sheet and
income statement for the period ended July 31, 1998 (including the notes
thereto) attached hereto as Exhibit E and incorporated herein by reference,
are correct and fairly present the financial condition of U S Jet as of said
date and for the period involved, and, to the best knowledge of U S Jet and
the U S Jet Stockholders, such statements were prepared in accordance with
generally accepted accounting principles consistently applied, except as set
forth in Exhibit F. These financial statements do not contain any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements made, in light of the circumstances under which
they were made, not misleading.
4.5. Undisclosed Liabilities. U S Jet has no material liabilities of
any nature except to the extent reflected or reserved against in the balance
sheet, whether accrued, absolute, contingent or otherwise, including, without
limitation, tax liabilities and interest due or to become due, except as set
forth in Exhibit F.
4.6. Interim Changes. Since the date of its balance sheet, except as
set forth in Exhibit F, there have been no:
a. Changes in the financial condition, assets, liabilities or
business of U S Jet, that, in the aggregate, have been materially adverse;
b. Damages, destruction or loss of or to the property of U S Jet,
payment of any dividend or other distribution in respect of the capital stock
of U S Jet, or any direct or indirect redemption, purchase or other
acquisition of any such stock; or
c. Increases paid or agreed to in the compensation, retirement
benefits or other commitments to their employees.
4.7. Title to Property. U S Jet has good and marketable title to all
properties and assets, real and personal, proprietary or otherwise, reflected
in this balance sheet, and the properties and assets of U S Jet are subject to
no mortgage, pledge, lien or encumbrance, except as reflected in the balance
sheet or in Exhibit F, with respect to which no default exists.
4.8. Litigation. There is no litigation or proceeding pending, or to
the knowledge of
U S Jet, threatened, against or relating to U S Jet or its properties or
business, except as set forth in Exhibit F, that, individually or in the
aggregate, could reasonably be expected to have a material adverse effect.
Further, no officer, director or person who may be deemed to be an affiliate
of U S Jet is party to any material legal proceeding which could have an
adverse effect on U S Jet (financial or otherwise), and none is party to any
action or proceeding wherein any such officer, director or person has an
interest adverse to U S Jet.
4.9. Books and Records. From the date of this Plan to the Closing, the
U S Jet Stockholders will cause U S Jet to (a) give to American Coal and its
representatives full access during normal business hours to all of its
offices, books, records, contracts and other corporate documents and
properties so that American Coal may inspect and audit them; and (b) furnish
such information concerning the properties and affairs of U S Jet as American
Coal may reasonably request.
4.10. Tax Returns. Except as set forth in Exhibit F, U S Jet has filed
all federal and state income or franchise tax returns required to be filed or
has received currently effective extensions of the required filing dates.
4.11. Confidentiality. Until the Closing (and continuously if there is
no Closing), U S Jet, the U S Jet Stockholders and their representatives will
keep confidential any information which they obtain from American Coal
concerning its properties, assets and business. If the transactions
contemplated by this Plan are not consummated by August 24, 1998, U S Jet and
the U S Jet Stockholders will return to American Coal all written matter with
respect to American Coal obtained by them in connection with the negotiation
or consummation of this Plan.
4.12. Investment Intent. The U S Jet Stockholders are acquiring the
shares to be exchanged and delivered to it under this Plan for investment and
not with a view to the sale or distribution thereof, and the U S Jet
Stockholders have no commitment or present intention to liquidate American
Coal or to sell or otherwise dispose of the American Coal shares. Each of
the U S Jet Stockholders shall execute and deliver to American Coal on the
Closing an Investment Letter in the form attached hereto as Exhibit G and
incorporated herein by reference, acknowledging the "unregistered" and
"restricted" nature of the shares of American Coal being received under the
Plan in exchange for the U S Jet Shares, and receipt of certain material
information regarding American Coal.
4.13. Corporate Authority. U S Jet has full corporate power and
authority to enter into this Plan and to carry out its obligations hereunder
and will deliver to American Coal or its representative at the Closing a
certified copy of resolutions of its Board of Directors authorizing execution
of this Plan by its officers and performance thereunder.
4.14. Due Authorization. Execution of this Plan and performance by U S
Jet hereunder have been duly authorized by all requisite corporate action on
the part of U S Jet, and this Plan constitutes a valid and binding obligation
of U S Jet and performance hereunder will not violate any provision of the
Articles of Incorporation, Bylaws, agreements, mortgages or other commitments
of U S Jet.
4.15. Environmental Matters. U S Jet and the U S Jet Stockholders have
no knowledge of any assertion by any governmental agency or other regulatory
authority of any environmental lien, action or proceeding, or of any cause for
any such lien, action or proceeding related to the business operations of U S
Jet or its predecessors. In addition, to the best knowledge of U S Jet, there
are no substances or conditions which may support a claim or cause of action
against U S Jet or any of its current or former officers, directors, agents,
employees or predecessors, whether by a governmental agency or body, private
party or individual, under any Hazardous Materials Regulations. "Hazardous
Materials" means any oil or petrochemical products, PCB's, asbestos, urea
formaldehyde, flammable explosives, radioactive materials, solid or hazardous
wastes, chemicals, toxic substances or related materials, including, without
limitation, any substances defined as or included in the definition of
"hazardous substances," "hazardous wastes," "hazardous materials," or "toxic
substances" under any applicable federal or state laws or regulations.
"Hazardous Materials Regulations" means any regulations governing the use,
generation, handling, storage, treatment, disposal or release of hazardous
materials, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act, the Resource Conservation and
Recovery Act and the Federal Water Pollution Control Act.
4.16. Access to Information Regarding American Coal. U S Jet and the
U S Jet Stockholders acknowledge that they have been delivered copies of what
has been represented to be documentation containing all material information
respecting American Coal and its present and contemplated business operations,
potential acquisitions, management and other factors; that they have had a
reasonable opportunity to review such documentation and discuss it, to the
extent desired, with their legal counsel, directors and executive officers;
that they have had, to the extent desired, the opportunity to ask questions of
and receive responses from the directors and executive officers of American
Coal, and with the legal and accounting firms of American Coal, with respect
to such documentation; and that to the extent requested, all questions raised
have been answered to their complete satisfaction. U S Jet and the U S Jet
Stockholders have conducted such investigations and received such advice as
has been necessary to confirm that, as of the date of the Plan, the share
conversion provided in Section 1.2 of the Plan is fair to the U S Jet
Stockholders.
4.17. Governmental Approval; Consents. No authorization, license,
permit, franchise, approval, order or consent of, and no registration,
declaration or filing by U S Jet with any governmental authority, domestic or
foreign, federal, state or local, is required in connection with U S Jet's
execution, delivery and performance of this Plan or the consummation of the
transactions contemplated hereby. No consents of any other parties are
required to be received by or on the part of U S Jet or the U S Jet
Stockholders to enable U S Jet or the U S Jet Stockholders to enter into and
carry out this Plan.
4.18. No Omission or Untrue Statement. No representation or warranty
made by U S Jet or the U S Jet Stockholders to American Coal in this Plan, or
in any certificate of a U S Jet or U S Jet Subsidiary officer required to be
delivered to American Coal pursuant to the terms of this Plan, contains or
will contain any untrue statement of a material fact, or omits or will omit to
state a material fact necessary to make the statements contained herein or
therein not misleading as of the date hereof and as of the Closing.
4.19. Tax and Accounting Matters. U S Jet and the U S Stockholders
have not, to any of their best knowledge and based upon consultation with
their counsel and independent auditors, taken or agreed to take any action
that (without giving effect to this Plan, the transactions contemplated hereby
or actions related thereto, or any action agreed to be taken by American Coal
or any of its affiliates) would prevent the Surviving Corporation from
accounting for the business combination to be effected by the Merger as a
pooling of interests for accounting purposes and a "tax free" reorganization
for tax purposes.
ARTICLE V. CONDUCT OF U S JET PENDING THE CLOSING
Except as otherwise provided herein, U S Jet agrees that it will conduct
itself in the following manner pending the Closing:
5.1. Certificate of Incorporation and Bylaws. No change will be made
in the Certificate of Incorporation or Bylaws of U S Jet.
5.2. Capitalization, etc. U S Jet will not make any change in its
authorized or issued shares of any class, declare or pay any dividend or other
distribution, or issue, encumber, purchase or otherwise acquire any of its
shares of any class.
5.3. Conduct of Business. U S Jet will use its best efforts to
maintain and preserve its business organization, employee relationships and
good will intact, and will not, without the written consent of American Coal,
enter into any material commitments except in the ordinary course of business.
5.4. Permitted Transactions. Notwithstanding the foregoing, U S Jet
shall be entitled, prior to the Closing, to continue negotiations and actions
to further consummation of any and/or all of the transactions pending or
presently under consideration by U S Jet as of the date of this Plan, all as
more particularly described in Exhibit H.
ARTICLE VI. CONDUCT OF AMERICAN COAL PENDING THE CLOSING
Except as otherwise provided herein, American Coal agrees that American
Coal will conduct itself in the following manner pending the Closing:
6.1. Certificate of Incorporation and Bylaws. No change will be made
in the Certificate of Incorporation or Bylaws of American Coal.
6.2. Capitalization, Etc. American Coal will not make any change in
its authorized or issued shares, declare or pay any dividend or other
distribution, or issue, encumber, purchase or otherwise acquire any of its
shares of any class.
6.3. Conduct of Business. American Coal will use its best efforts to
maintain and preserve its business organization, employee relationships and
good will intact, and will not, without the written consent of U S Jet and the
U S Jet Stockholders, enter into any material commitments except in the
ordinary course of business.
ARTICLE VII. CONDITIONS PRECEDENT TO
OBLIGATIONS OF AMERICAN COAL
All obligations of American Coal under this Plan are subject, at its
option, to the fulfillment, before or at the Closing, of each of the following
conditions:
7.1. Representations and Warranties True at Closing. The
representations and warranties of U S Jet and the U S Jet Stockholders
contained in this Plan shall be deemed to have been made again at and as of
the Closing and shall then be true in all material respects and shall survive
the Closing.
7.2. Due Performance. U S Jet and the U S Jet Stockholders shall have
performed and complied with all of the terms and conditions required by this
Plan to be performed or complied with by them before the Closing.
7.3. Officer's and Stockholder's Certificate. American Coal shall have
been furnished with a certificate signed by the President of U S Jet and the U
S Jet Stockholders, attached hereto as Exhibit I and incorporated herein by
reference, dated as of the Closing, certifying:
a. That all representations and warranties of U S Jet and the U S
Jet Stockholders contained herein are true and correct; and
b. That since the date of the financial statements (Exhibit E),
there has been no material adverse change in the financial condition, business
or properties of U S Jet, taken as a whole.
7.4. Opinion of Counsel of U S Jet. American Coal shall have received
an opinion of counsel for U S Jet, dated as of the Closing, to the effect
that:
a. The representations of Sections 4.2, 4.3 and 4.13 are correct;
b. Except as specified in the opinion, counsel knows of no
inaccuracy in the representations in 4.6, 4.7 or 4.8; and
c. The U S Jet Shares to be delivered to American Coal under this
Plan will, when so delivered, have been validly issued, fully paid and non-
assessable.
7.5. Books and Records. The U S Jet Stockholders or the Board of
Directors of U S Jet shall have caused U S Jet to make available all books and
records of U S Jet, including minute books and stock transfer records;
provided, however, only to the extent requested in writing by American Coal at
Closing.
7.6. Acceptance by U S Jet Stockholders. The terms of this Plan shall
have been accepted by all of the U S Jet Stockholders, by their execution and
delivery of a copy of the Plan and related instruments.
ARTICLE VIII. CONDITIONS PRECEDENT TO OBLIGATIONS OF
U S JET AND THE U S JET STOCKHOLDERS
All obligations of U S Jet and the U S Jet Stockholders under this Plan
are subject, at their option, to the fulfillment, before or at the Closing, of
each of the following conditions:
8.1. Representations and Warranties True at Closing. The
representations and warranties of American Coal contained in this Plan shall
be deemed to have been made again at and as of the Closing and shall then be
true in all material respects and shall survive the Closing.
8.2. Due Performance. American Coal shall have performed and complied
with all of the terms and conditions required by this Plan to be performed or
complied with by it before the Closing.
8.3. Officers' Certificate. U S Jet and the U S Jet Stockholders shall
have been furnished with a certificate signed by the President of American
Coal, in such capacity and personally, attached hereto as Exhibit J and
incorporated herein by reference, dated as of the Closing, certifying:
a. That all representations and warranties of American Coal
contained herein are true and correct; and
b. That since the date of the financial statements (Exhibit C
hereto), there has been no material adverse change in the financial condition,
business or properties of American Coal, taken as a whole.
8.4. Opinion of Counsel of American Coal. U S Jet and the U S Jet
Stockholders shall have received an opinion of counsel for American Coal,
dated as of the Closing, to the effect that:
a. The representations of Sections 3.1, 3.2 and 3.12 are correct;
b. Except as specified in the opinion, counsel knows of no
inaccuracy in the representations in 3.5, 3.6 or 3.7; and
c. The shares of American Coal to be issued to the U S Jet
Stockholders under this Plan will, when so issued, be validly issued, fully
paid and non-assessable.
8.5. Assets and Liabilities of American Coal. American Coal shall have
no material assets and no liabilities at Closing, and all costs, expenses and
fees incident to the Plan shall have been paid.
8.6. Resignation of Directors and Executive Officers and Designation
of New Directors and Executive Officers. The present directors and executive
officers of American Coal shall resign, and shall have designated nominees of
U S Jet as directors and executive officers of American Coal to serve in their
place and stead, until the next respective annual meetings of the stockholders
and Board of Directors of American Coal, and until their respective successors
shall be elected and qualified or until their respective prior resignations or
terminations.
8.7. Reverse Split, Name Change and Amended Articles of American Coal.
Persons owning a majority of the outstanding voting securities of American
Coal shall have consented, in accordance with the Nevada Revised Statutes, to
a change in the name of American Coal, to effect a reverse split of its
outstanding voting securities, and to amend and restate its articles of
incorporation, all as outlined in Section 1.8 hereof.
8.8. Tax Opinion. U S Jet shall have received a written opinion from
its counsel, in form and substance reasonably satisfactory to it to the effect
that the Merger will constitute a reorganization within the meaning of Section
368(a) of the Code with respect to the American Coal shares to be received by
the U S Jet Stockholders in the Merger. In rendering such opinion, counsel
may rely upon the representations and certificates of U S Jet and American
Coal provided for herein.
8.9. Pooling-of-Interests Accounting Treatment. U S Jet shall have
received a letter dated as of the Effective Time of the Merger, from the
independent accountants of U S Jet, in form and substance satisfactory to U S
Jet, regarding the appropriateness of the pooling of interests accounting for
the Merger under the Accounting Principles Board Opinion No. 16, if closed and
consummated in accordance with the terms of this Plan.
ARTICLE IX. TERMINATION
9.1. Prior to Closing, this Plan may be terminated:
a. By mutual consent in writing;
b. By either the Directors of American Coal or the U S Jet
Stockholders and
U S Jet if there has been a material misrepresentation or material breach of
any warranty or covenant by the other party; or
c. By either the Directors of American Coal or the U S Jet
Stockholders and
U S Jet if the Closing shall not have taken place, unless adjourned to a later
date by mutual consent in writing, by the date fixed in Section 2.1.
ARTICLE X. SURVIVAL AND INDEMNITY
10.1. Survival of Representations, Warranties, Covenants and
Agreements. The representations, warranties, covenants and agreements
contained herein shall survive the Closing without regard to any action taken
pursuant to this Plan, including without limitation, any investigation made by
the party asserting any breach thereof, and shall continue in full force and
effect for three years after the Closing.
10.2. Indemnity from American Coal. American Coal agrees to indemnify
and hold
U S Jet and the U S Jet Stockholders harmless against and in respect of:
a. Any damage, liability, deficiency, loss, cost, expense or
claim arising out of or resulting from (i) any defect in title, (ii) any
misrepresentation or omission by American Coal herein or in any exhibit
hereto, (iii) any materially misleading information furnished by American Coal
herein or in any exhibit hereto, (iv) any breach by American Coal of any
representation, warranty or covenant herein or in any exhibit hereto, or (v)
any debt or other obligation of American Coal existing at or prior to the
Closing or arising thereafter in connection with events occurring prior to the
Closing (to the extent only that such debt or obligation is attributable to
such events prior to the Closing); and
b. All reasonable costs and expenses (including reasonable
attorneys' fees) incurred by U S Jet or the U S Jet Stockholders in connection
with any action, suit, proceeding, demand, assessment or judgment incident to
any of the matters indemnified against in this Section 10.2.
10.3. Indemnity from U S Jet and U S Jet Stockholders. U S Jet and the
U S Jet Stockholders agree to indemnify and hold American Coal harmless from
and against and in respect of:
a. Any damage, liability, deficiency, loss, cost, expense or
claim arising out of or resulting from (i) the breach of any representation,
warranty or covenant by U S Jet or the U S Jet Stockholders herein or in any
exhibit hereto (ii) any misrepresentation or omission by U S Jet or the U S
Jet Stockholders herein or in any exhibit hereto or (iii) any materially
misleading information furnished by U S Jet or the U S Jet Stockholders herein
or in any exhibit hereto; and
b. All reasonable costs and expenses (including reasonable
attorneys' fees) incurred by American Coal in connection with any action,
suit, proceeding, demand, assessment, or judgment incident to any of the
matters indemnified against in this Section 10.3.
10.4. Not Exclusive Remedy. Any right of indemnity of any party
pursuant to this Article 10 shall be in addition to and shall not operate as a
limitation on any other right to indemnity of such party pursuant to this
Plan, any other document or instrument executed in connection with the
consummation of the transaction contemplated hereby, or otherwise.
ARTICLE XI. GENERAL PROVISIONS
11.1. Further Assurances. At any time, and from time to time, after
the Closing, each party will execute such additional instruments and take such
action as may be reasonably requested by the other party to confirm or perfect
title to any property transferred hereunder or otherwise to carry out the
intent and purposes of this Plan.
11.2. Tax-free Reorganization; Pooling of Interests. The parties
intend that the Merger be treated as a tax free reorganization under Section
368(a) of the Internal Revenue Code of 1986, as amended, and be accounted for
as a pooling of interests pursuant to Opinion No. 16 of the Accounting
Principles Board.
11.3. Waiver. Any failure on the part of any party hereto to comply
with any of their respective obligations, agreements or conditions hereunder
may be waived in writing by the party to whom such compliance is owed.
11.4. Brokers. Each party represents to the other parties hereunder,
that except as provided in Exhibit K attached hereto and incorporated herein
by reference, no broker or finder has acted for them in connection with this
Plan, and agrees to indemnify and hold harmless the other parties against any
fee, loss or expense arising out of claims by brokers or finders employed or
alleged to have been employed by them.
11.5. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been given if delivered in person or
sent by prepaid first-class registered or certified mail, return receipt
requested, as follows:
If to American Coal: American Coal Corporation
Attn: Dannette Uyeda, President
1969 West North Temple
Salt Lake City UT 84116
and
James N. Barber, Esq.
Counsel for American Coal
50 West Broadway, Ground Floor
Salt Lake City UT 84101
Brent Berkley, Esq.
1969 West North Temple
Salt Lake City, Utah 84116
If to U S Jet: U S Jet, Inc.
Attn: Kenneth R. DeBree, President
111 Airport Road
Butte, Montana 59701.
and
J. Richard Orizotti, Esq.
Poore, Roth & Robinson
Counsel for U S Jet
1341 Harrison Avenue
Butte MT 59701
If to U S Jet Stockholders: The addresses listed in the
Counterpart
Signature pages
11.6. Entire Agreement. This Plan constitutes the entire agreement
between the parties and supersedes and cancels any other agreement,
representation, or communication, whether oral or written, between the parties
hereto relating to the transactions contemplated herein or the subject matter
hereof.
11.7. Headings. The section and subsection headings in this Plan are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Plan.
11.8. Governing Law. This Plan shall be governed by and construed and
enforced in accordance with the laws of the State of Nevada, except to the
extent pre-empted by federal law, in which event (and to that extent only),
federal law shall govern.
11.9. Assignment. This Plan shall inure to the benefit of, and be
binding upon, the parties hereto and their successors and assigns; provided
however, that any assignment by any party of any rights under this Plan
without the prior written consent of the other parties shall be void.
11.10. Counterparts. This Plan may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
11.11. Severability. Any provision of this Plan which is invalid or
unenforceable shall be ineffective only to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable the remaining
provisions of this Agreement.
11.12. Time. Time is of the essence of this Plan.
11.13. Attorneys' Fees. If any legal action, arbitration or other
proceeding is brought for the enforcement of this Plan, or because of any
alleged dispute, breach, default or misrepresentation in connection with any
of the provisions of this Plan, the successful or prevailing party shall be
entitled to recover reasonable attorneys' fees and other costs incurred
therein, in addition to any other relief to which it or they may be entitled.
The court or arbitrator shall consider, in determining the prevailing party:
a. Which party obtains relief which most nearly reflects the
remedy or relief which the parties sought, and
b. Any settlement offers made prior to commencement of the trial
in the proceeding.
IN WITNESS WHEREOF, the parties have executed this Agreement and Plan of
Merger effective the day and year first above written.
AMERICAN COAL CORPORATION
Date: 8/19/98 /s/ Dannette Uyeda, President
U S JET, INC.
Date: 8/23/98 /s/ Kenneth R. Debree, President
Stockholders:
Price Family Limited Partnership
By /s/ Paul A. Price, General Partner
/s/ Kenneth R. DeBree
/s/ Bill Markovich, Jr.
/s/ L. William Hegland
/s/ Leonard W. Burningham, Esq.
/s/ Johnny C. Chao
/s/ Kenneth R. DeBree for Jean P. DeBree
EXHIBIT A
Number of Number of Number of Shares of
Common Shares Preferred Shares American Coal
Owned of Owned of to be
Name U S Jet U S Jet Received in Exchange
Price Family Limited -0- 400,000 4,000,000
Partnership, Paul A. Price,
General Partner
25 Burning Tree Lane
Butte, Montana 59701
Kenneth R. DeBree 480,000 50,000 5,300,000
1335 Porphyry
Butte, Montana 59701
Bill Markovich, Jr. 30,000 -0- 300,000
2827 Lexington
Butte, Montana 59701
L. William Hegland 30,000 -0- 300,000
111 Airport Road
Butte, Montana 59701
Leonard W. Burningham, Esq.* 20,000 -0- 200,000
455 East 500 South, #205
Salt Lake City, Utah 84111
Johnny C. Chao 5,000 -0- 50,000
7700 E. Hartdford Drive
Scottsdale, Arizona 85255
Jean P. DeBree 5,000 -0- 50,000
5363 Lone Pine Road
Helena, Montana 59601 ----------
10,200,000
* Shares issued pursuant to Rule 701 and a Written Compensation
Agreement adopted by U S Jet in the resolutions of directors and
stockholders adopting, ratifying and approving the Plan; and
adopted by American Coal in the resolutions of its Board of
Directors and Majority Stockholders adopting, ratifying and
approving the Plan.
<PAGE>
EXHIBIT B
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
U S JET, INC.
The undersigned, U S Jet, Inc., a Nevada corporation (the
"Corporation"), for the purpose of amending and restating the Articles of
Incorporation of the Corporation, in accordance with the applicable provisions
of the Nevada Revised Statutes, as from time to time amended (the "NRS"), does
hereby make and execute these Amended and Restated Articles of Incorporation
and does hereby certify that:
I. The name of the Corporation is U S Jet, Inc.. Its original
articles of incorporation were filed with the Secretary of State of Nevada on
July 2, 1986, under the name "Technical Solutions, Ltd." On July 3, 1989, the
name of the Corporation was changed to "American Coal Corporation." On August
27, 1998, the name of the Corporation was changed to "U S Jet, Inc."
II. Upon a proposal recommended and submitted to the majority
stockholders of the Corporation by the Corporation's directors pursuant to
Section 78.315 of the NRS, resolutions setting forth the within Amended and
Restated Articles of Incorporation of the Corporation were duly adopted by
majority vote of the stockholders of the Corporation by written consent, in
accordance with Section 78.320 of the NRS.
III. The Amended and Restated Articles of Incorporation of the
Corporation submitted and recommended by the Corporation's directors and
approved by the majority stockholders of the Corporation read as follows;
"Article ONE. The name of the Corporation is "U S JET, INC.".
Article TWO. The address of the Corporation's registered office in the
State of Nevada is 502 East John Street, Room E, Carson City NV 89706, and the
name of its registered agent at that address is CSC SERVICES OF NEVADA, INC.
Article THREE. The nature of the business or purposes to be conducted
or promoted by the Corporation is to engage in any lawful act or activity for
which corporations may be organized under the laws of the State of Nevada, as
amended from time to time. In addition to the powers and privileges conferred
upon the Corporation by law and those incidental thereto, the Corporation
shall possess and may exercise all the powers and privileges which are
necessary or convenient to the conduct, promotion or attainment of the
business or purposes of the Corporation.
Article FOUR. The aggregate number of shares of all classes of stock
which the Corporation shall have authority to issue is Three Hundred Million
(300,000,000) , consisting of:
a. Ten Million (10,000,000) shares of Series A Preferred Stock,
$.001 par value (the "Preferred Stock"); and
b. Two Hundred Ninety Million (290,000,000) shares of Common
Stock, $.001 par value (the "Common Stock").
All or any part of the shares of the Preferred Stock and the Common
Stock may be issued by the Corporation from time to time and for such
consideration as may be determined and fixed by the Board of Directors, as
provided by law, with due regard to the interest of the existing shareholders;
and when consideration for these shares has been received by the Corporation,
the shares shall be deemed fully paid. The designations, powers, preferences
and relative participating, optional or other special rights, and the
qualifications, limitations and restrictions thereof in respect of the
Preferred Stock and the Common Stock are as follows:
A. PREFERRED STOCK
The designations, powers, preferences and relative participating,
optional or other special rights, and the qualifications, limitations and
restrictions thereof in respect of the Preferred Stock to be issued by the
Corporation from time to time shall be established by the Board of Directors,
in accordance with and as authorized by the NRS:
B. COMMON STOCK
1. Voting. Each holder of Common Stock shall be entitled to one vote
for each share of Common Stock held on all matters as to which holders of
Common Stock shall be entitled to vote. Anything contained in these Amended
and Restated Articles of Incorporation to the contrary notwithstanding, the
number of authorized shares of Common Stock may be increased or decreased (but
not below the number of shares thereof then outstanding or reserved for
issuance upon the conversion, exercise or exchange of securities, options,
warrants or rights then outstanding) by the affirmative vote of the holders of
a majority of the shares of Preferred Stock and Common Stock, voting together
as one class. In any election of directors, no holder of Common Stock shall
be entitled to cumulate his votes by giving one candidate more than one vote
per share.
2. Other Rights. Each share of Common Stock issued and outstanding
shall be identical in all respects one with the other, and no dividends shall
be paid on any shares of Common Stock unless the same dividend is paid on all
shares of Common Stock outstanding at the time of such payment. Except for
and subject to those rights exclusively granted to the holders of the
Preferred Stock or except as may be provided by law, the holders of Common
Stock shall have all other rights of stockholders, including, but not by way
of limitation, (i) the right to receive dividends, when and as declared by the
Board of Directors out of assets legally available therefor, and (ii) in the
event of any distribution of assets upon liquidation, dissolution or winding
up of the Corporation or otherwise, the right to receive ratably and equally
all the assets and funds of the Corporation remaining after the payment to the
holders of the Preferred Stock of the specific amounts which they are entitled
to receive upon such liquidation, dissolution or winding up of the Corporation
as herein provided.
C. OWNERSHIP BY ALIENS
As more particularly provided in the Corporation's By-laws, beneficial
ownership of shares of the Corporation's voting stock by Aliens (as defined in
the By-laws and in applicable statutory, regulatory and interpretive
restrictions regarding foreign ownership or control of U.S. air carriers) is
restricted.
D. REVERSE STOCK SPLIT RESTRICTION
The Corporation shall not be entitled, for a period of two (2) years
after the effective date of these Amended and Restated Articles of
Incorporation, to effect any reverse split of any classes of its outstanding
shares.
Article FIVE. Unless otherwise determined by the Board of Directors, no
shareholder shall be entitled, as a matter of right, to purchase, subscribe
for, or receive any right or rights to subscribe for any stock of any class
that the Corporation may issue or sell, whether or not exchangeable for any
stock of the Corporation of any class or classes, and whether or not of
unissued shares authorized by the articles of incorporation as originally
filed or by any amendment of the articles of incorporation or out of shares of
stock of the Corporation acquired by it after the issuance of the shares, and
whether issued for cash, promissory notes, services, personal or real
property, or other securities of the Corporation, nor shall any holder of
stock of the Corporation be entitled to any right of subscription to any of
such shares. Further, unless otherwise determined by the board of directors,
no holder of any shares of the stock of the Corporation is entitled, as a
matter of right, to purchase or subscribe for any obligation which the
Corporation may issue or sell that shall be convertible into or exchangeable
for any shares of the stock of the Corporation of any class or classes, or to
which shall be attached or appurtenant any warrant or warrants or other
instrument or instruments which confer on the holder or holders of the
obligation the right to subscribe for or purchase from the Corporation any
shares of its capital stock of any class or classes.
Article SIX.
a. Except as may be otherwise specifically provided by the NRS,
all powers of management, direction and control of the Corporation shall be,
and hereby are, vested in the Board of Directors.
b. A majority of the whole Board of Directors shall constitute a
quorum for the transaction of business, and, except as otherwise provided in
these Amended and Restated Articles of Incorporation, as amended, or the By-
laws, the vote of a majority of the directors present at a meeting at which a
quorum is then present shall be the act of the Board. As used in this Amended
and Restated Articles of Incorporation, as amended, the terms "whole Board"
and "whole Board of Directors" are hereby exclusively defined and limited to
mean the total number of directors which the Corporation would have if the
Board had no vacancies.
c. The number of directors shall be fixed by, or in the manner
provided in, the By-laws.
d. Any vacancies in the Board of Directors for any reason, and
any newly created directorships resulting from any increase in the number of
directors, may be filled by the Board of Directors, acting by a majority of
the directors then in office, although less than a quorum, and any directors
so chosen shall hold office until the next election and until their successors
shall be elected and qualified or until their respective earlier resignation,
removal or death. No decrease in the number of directors shall shorten the
term of any incumbent director.
e. Notwithstanding any other provision of these Amended and
Restated Articles of Incorporation, as amended, or the By-laws, and
notwithstanding the fact that some lesser percentage may be specified by law,
these Amended and Restated Articles of Incorporation, as amended, or the By-
laws, any director or the whole Board of Directors of the Corporation may be
removed at any time, but only for cause and only upon the affirmative vote of
the holders of a majority or more of the then outstanding shares of Voting
Stock, considered for this purpose as one class (for the purposes of this
Article SIX, section (e), each share of the Voting Stock shall have the number
of votes granted to it pursuant to Article FOUR of these Amended and Restated
Articles of Incorporation, as amended).
f. As used in these Amended and Restated Articles of
Incorporation, as amended, the term "for cause" is hereby exclusively defined
and limited to mean commission of a felony or a finding by a court of
competent jurisdiction of liability for negligence, or misconduct, in the
performance of the director's duty to the Corporation in a matter of
substantial importance to the Corporation, where such adjudication is no
longer subject to direct appeal.
g. There shall be no qualifications for election as directors of
the Corporation, except that no person shall be eligible to stand for election
as a director if such person has been convicted of a felony by a court of
competent jurisdiction where such conviction is no longer subject to direct
appeal.
h. Except as provided in this Article SIX, no director of the
Corporation shall be removed from his office as a director by vote or other
action of stockholders or otherwise except for cause.
i. Advance notice of nominations for the election of directors
other than nominations by the Board of Directors or a committee thereof shall
be given to the Corporation in the manner provided in the By-laws.
j. Except as may be otherwise specifically provided in this
Article SIX, the term of office and voting power of each director of the
Corporation shall be neither greater than nor less than that of any other
director or class of directors of the Corporation.
k. Elections of directors need not be by ballot unless the By-
laws of the Corporation shall so provide.
Article SEVEN. The By-laws of the Corporation shall be adopted in any
manner provided by law. In furtherance, and not in limitation of, the powers
conferred by statute, the Board of Directors is expressly authorized to make,
adopt, alter, amend or repeal the By-laws of the Corporation. Notwithstanding
any other provisions in these Amended and Restated Articles of Incorporation,
as amended, or the By-laws of the Corporation, and notwithstanding the fact
that some lesser percentage may be specified by law, the stockholders of the
Corporation shall have the power to make, adopt, alter, amend or repeal the
By-laws of the Corporation only upon the affirmative vote of a majority or
more of the then outstanding shares of Voting Stock, considered for this
purpose as one class (for purposes of this Article SEVEN, each share of the
Voting Stock shall have the number of votes granted to it pursuant to Article
FOUR of these Amended and Restated Articles of Incorporation, as amended).
Article EIGHT. The Corporation may agree to the terms and conditions
upon which any director, officer, employee or agent accepts his office or
position and in its By-laws, by contract or in any other manner may agree to
indemnify and protect any director, officer, employee or agent of the
Corporation, or any person who serves at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, to the
fullest extent permitted by the NRS (including, without limitation, the
statutes, case law and principles of equity) of the State of Nevada. If the
NRS (including, without limitation, the statutes, case law or principles of
equity, as the case may be) of the State of Nevada are amended or changed to
permit or authorize broader rights of indemnification to any of the persons
referred to in the immediately preceding sentence, then the Corporation shall
be automatically authorized to agree to indemnify such respective persons to
the fullest extent permitted or authorized by such law, as so amended or
changed, without the need for amendment or modification of this Article EIGHT
and without further action by the directors or stockholders of the
Corporation.
Without limiting the generality of the foregoing provisions of this
Article EIGHT, to the fullest extent permitted or authorized by the NRS as now
in effect and as the same may from time to time hereafter be amended, no
director of the Corporation shall be personally liable to the Corporation or
to its stockholders for monetary damages for breach of fiduciary duty as a
director. Any repeal or modification of the immediately preceding sentence
shall not adversely affect any right or protection of a director of the
Corporation existing hereunder with respect to any act or omission occurring
prior to or at the time of such repeal or modification.
Article NINE. Whenever a compromise or arrangement is proposed between
this Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Nevada may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of the NRS or on the application of trustees in dissolution or
of any receiver or receivers appointed for this Corporation under the
provisions of the NRS order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this Corporation, as
the case may be, to be summoned in such manner as the said court directs. If
a majority in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of
this Corporation, as the case may be, agree to any compromise or arrangement
and to any reorganization of this Corporation as a consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, or on
all the stockholders or class of stockholders, of this Corporation, as the
case may be, and also on this Corporation.
Article TEN. Except as may be otherwise provided by statute, the
Corporation shall be entitled to treat the registered holder of any shares of
the Corporation as the owner of such shares and of all rights derived from
such shares for all purposes, and the Corporation shall not be obligated to
recognize any equitable or other claim to or interest in such shares or rights
on the part of any other person, including, but without limiting the
generality of the term "person" to, a purchaser, pledgee, assignee or
transferee of such shares or rights, unless and until such person becomes the
registered holder of such shares. The foregoing shall apply whether or not
the Corporation shall have either actual or constructive notice of the claim
by or the interest of such person.
Article ELEVEN. The books of the Corporation may be kept (subject to
any provisions contained in the NRS) outside the State of Nevada at such place
or places as may be designated from time to time by the Board of Directors or
in the By-laws of the Corporation.
Article TWELVE. Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or
special meeting of such holders and may not be effected by any consent in
writing by such holders; provided, however, that the foregoing shall not
derogate from the authority of all the directors and all of the stockholders
of the Corporation eligible to vote, to adopt an amendment to these Amended
and Restated Articles of Incorporation, as amended, by signing a written
statement manifesting their intention that an amendment to these Amended and
Restated Articles of Incorporation, as amended, be adopted pursuant to the
NRS.
Article THIRTEEN. Except as otherwise required by law and subject to
the rights, if any, of the holders of Preferred Stock or any series thereof,
special meetings of the stockholders of the Corporation may be called only by
the Chairman of the Board of Directors, the President of the Corporation or
the Board pursuant to a resolution adopted by the a majority of the whole
Board.
Article FOURTEEN. The Corporation reserves the right to amend, alter,
change or repeal any provision contained in these Amended and Restated
Articles of Incorporation, as amended, in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
Article FIFTEEN. The duration of the Corporation is perpetual.
Article SIXTEEN. None of the provisions of Articles FOUR, FIVE or this
Article SIXTEEN may be amended, altered, changed or repealed except upon the
affirmative vote at any annual or special meeting of the stockholders, of the
holders of at least a majority or more of the then outstanding shares of
Voting Stock, considered for this purpose as one class (for the purpose of
this Article SIXTEEN, each share of Voting Stock shall have the number of
votes granted to it pursuant to Article FOUR of these Amended and Restated
Articles of Incorporation), nor shall new provisions to these Amended and
Restated Articles of Incorporation, as amended, be adopted or existing
provisions to these Amended and Restated Articles of Incorporation, as
amended, be amended, altered or repealed which in either instance are in
conflict or inconsistent with Articles FOUR, FIVE or this Article SIXTEEN
except upon the affirmative vote at any annual or special meeting of the
stockholders of the holders of at least a majority or more of the then
outstanding shares of Voting Stock, considered for this purpose as one class.
Any inconsistency between the provisions of a By-law and any provisions of
these Amended and Restated Articles of Incorporation, as amended, shall be
controlled by these Amended and Restated Articles of Incorporation, as
amended.
IV. The foregoing Amended and Restated Articles of Incorporation
restate and integrate and do not further amend the provisions of the
Corporation's Articles of Incorporation as theretofore amended or
supplemented, and there is no discrepancy between those provisions and the
provisions of these Amended and Restated Articles of incorporation; and
V. These Amended and Restated Articles of Incorporation have been
duly adopted in accordance with the provisions of the NRS.
IN WITNESS WHEREOF, these Amended and Restated Articles of Incorporation
have been executed on behalf of the Corporation as of August 24, 1998, by its
President, who does make, file and record these Amended and Restated Articles
of Incorporation, and does certify that this instrument is the act and deed of
the Corporation and that the facts stated herein are true, and that he has
accordingly hereunto set his hand this 24th day of August, 1998.
U S JET INC.
By: /s/ Kenneth R. DeBree, President
By: /s/ Paul A. Price, Secretary
<PAGE>
EXHIBIT B-1
RESTATED BYLAWS
BYLAWS
OF
U S JET, INC.
ARTICLE I
OFFICES
Section 1.01 Location of Offices. The corporation may maintain such
offices within or without the State of Nevada as the Board of Directors may
from time to time designate or require.
Section 1.02 Principal Office. The address of the principal office of
the corporation shall be at the address of the registered office of the
corporation as so designated in the office of the Lieutenant
Governor/Secretary of State of the state of incorporation, or at such other
address as the Board of Directors shall from time to time determine.
ARTICLE II
SHAREHOLDERS
Section 2.01 Annual Meeting. The annual meeting of the shareholders
shall be held in May of each year or at such other time designated by the
Board of Directors and as is provided for in the notice of the meeting, for
the purpose of electing directors and for the transaction of such other
business as may come before the meeting. If the election of directors shall
not be held on the day designated for the annual meeting of the shareholders,
or at any adjournment thereof, the Board of Directors shall cause the election
to be held at a special meeting of the shareholders as soon thereafter as may
be convenient.
Section 2.02 Special Meetings. Special meetings of the shareholders
may be called at any time by the chairman of the board, the president, or by
the Board of Directors, or in their absence or disability, by any vice
president, and shall be called by the president or, in his or her absence or
disability, by a vice president or by the secretary on the written request of
the holders of not less than one-tenth of all the shares entitled to vote at
the meeting, such written request to state the purpose or purposes of the
meeting and to be delivered to the president, each vice-president, or
secretary. In case of failure to call such meeting within 60 days after such
request, such shareholder or shareholders may call the same.
Section 2.03 Place of Meetings. The Board of Directors may designate
any place, either within or without the state of incorporation, as the place
of meeting for any annual meeting or for any special meeting called by the
Board of Directors. A waiver of notice signed by all shareholders entitled to
vote at a meeting may designate any place, either within or without the state
of incorporation, as the place for the holding of such meeting. If no
designation is made, or if a special meeting be otherwise called, the place of
meeting shall be at the principal office of the corporation.
Section 2.04 Notice of Meetings. The secretary or assistant secretary,
if any, shall cause notice of the time, place, and purpose or purposes of all
meetings of the shareholders (whether annual or special), to be mailed at
least ten days, but not more than 50 days, prior to the meeting, to each
shareholder of record entitled to vote.
Section 2.05 Waiver of Notice. Any shareholder may waive notice of any
meeting of shareholders (however called or noticed, whether or not called or
noticed and whether before, during, or after the meeting), by signing a
written waiver of notice or a consent to the holding of such meeting, or an
approval of the minutes thereof. Attendance at a meeting, in person or by
proxy, shall constitute waiver of all defects of call or notice regardless of
whether waiver, consent, or approval is signed or any objections are made.
All such waivers, consents, or approvals shall be made a part of the minutes
of the meeting.
Section 2.06 Fixing Record Date. For the purpose of determining
shareholders entitled to notice of or to vote at any annual meeting of
shareholders or any adjournment thereof, or shareholders entitled to receive
payment of any dividend or in order to make a determination of shareholders
for any other proper purpose, the Board of Directors of the corporation may
provide that the share transfer books shall be closed, for the purpose of
determining shareholders entitled to notice of or to vote at such meeting, but
not for a period exceeding fifty (50) days. If the share transfer books are
closed for the purpose of determining shareholders entitled to notice of or to
vote at such meeting, such books shall be closed for at least ten (10) days
immediately preceding such meeting.
In lieu of closing the share transfer books, the Board of Directors may
fix in advance a date as the record date for any such determination of
shareholders, such date in any case to be not more than fifty (50) and, in
case of a meeting of shareholders, not less than ten (10) days prior to the
date on which the particular action requiring such determination of
shareholders is to be taken. If the share transfer books are not closed and
no record date is fixed for the determination of shareholders entitled to
notice of or to vote at a meeting or to receive payment of a dividend, the
date on which notice of the meeting is mailed or the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as
the case may be, shall be the record date for such determination of
shareholders. When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this Section, such
determination shall apply to any adjournment thereof. Failure to comply with
this Section shall not affect the validity of any action taken at a meeting of
shareholders.
Section 2.07 Voting Lists. The officer or agent of the corporation
having charge of the share transfer books for shares of the corporation shall
make, at least ten (10) days before each meeting of shareholders, a complete
list of the shareholders entitled to vote at such meeting or any adjournment
thereof, arranged in alphabetical order, with the address of, and the number
of shares held by each, which list, for a period of ten (10) days prior to
such meeting, shall be kept on file at the registered office of the
corporation and shall be subject to inspection by any shareholder during the
whole time of the meeting. The original share transfer book shall be prima
facia evidence as to the shareholders who are entitled to examine such list or
transfer books, or to vote at any meeting of shareholders.
Section 2.08 Quorum. One-half of the total voting power of the
outstanding shares of the corporation entitled to vote, represented in person
or by proxy, shall constitute a quorum at a meeting of the shareholders. If a
quorum is present, the affirmative vote of the majority of the voting power
represented by shares at the meeting and entitled to vote on the subject shall
constitute action by the shareholders, unless the vote of a greater number or
voting by classes is required by the laws of the state of incorporation of the
corporation or the Articles of Incorporation. If less than one-half of the
outstanding voting power is represented at a meeting, a majority of the voting
power represented by shares so present may adjourn the meeting from time to
time without further notice. At such adjourned meeting at which a quorum
shall be present or represented, any business may be transacted which might
have been transacted at the meeting as originally noticed.
Section 2.09 Voting of Shares. Each outstanding share of the
corporation entitled to vote shall be entitled to one vote on each matter
submitted to vote at a meeting of shareholders, except to the extent that the
voting rights of the shares of any class or series of stock are determined and
specified as greater or lesser than one vote per share in the manner provided
by the Articles of Incorporation.
Section 2.10 Proxies. At each meeting of the shareholders, each
shareholder entitled to vote shall be entitled to vote in person or by proxy;
provided, however, that the right to vote by proxy shall exist only in case
the instrument authorizing such proxy to act shall have been executed in
writing by the registered holder or holders of such shares, as the case may
be, as shown on the share transfer of the corporation or by his or her or her
attorney thereunto duly authorized in writing. Such instrument authorizing a
proxy to act shall be delivered at the beginning of such meeting to the
secretary of the corporation or to such other officer or person who may, in
the absence of the secretary, be acting as secretary of the meeting. In the
event that any such instrument shall designate two or more persons to act as
proxies, a majority of such persons present at the meeting, or if only one be
present, that one shall (unless the instrument shall otherwise provide) have
all of the powers conferred by the instrument on all persons so designated.
Persons holding stock in a fiduciary capacity shall be entitled to vote the
shares so held and the persons whose shares are pledged shall be entitled to
vote, unless in the transfer by the pledge or on the books of the corporation
he or she shall have expressly empowered the pledgee to vote thereon, in which
case the pledgee, or his or her or her proxy, may represent such shares and
vote thereon.
Section 2.11 Written Consent to Action by Shareholders. Any action
required to be taken at a meeting of the shareholders, or any other action
which may be taken at a meeting of the shareholders, may be taken without a
meeting, if a consent in writing, setting forth the action so taken, shall be
signed by all of the shareholders entitled to vote with respect to the subject
matter thereof.
Section 2.12. Ownership by Aliens - Foreign Stock Record . There shall
be maintained a separate stock record, designated the "Foreign Stock Record,"
for the registration of shares of the Corporation's stock that are
beneficially owned by Aliens. For purposes of these Bylaws: (i) an "Alien"
shall mean and refer to any person or entity that is not a "U.S. PERSON"
within the meaning given to that term by Regulation S under the Securities Act
of 1933, as amended; and (ii) "Alien Stock" shall mean and refer to any shares
of the Corporation's stock held by Aliens. The beneficial ownership of the
Corporation's stock by Aliens shall be determined in conformity with
regulations prescribed by the Board of Directors.
Section 2.13. Maximum Percentages. At no time shall ownership of
shares representing more than the Maximum Percentage of Voting Stock, as
defined below, be registered in the Foreign Stock Record. As used herein, (a)
"Maximum Percentage" means the maximum percentage of voting power of the
Corporation's Voting Stock, as defined below, which may be voted by, or at the
direction of, Aliens without violating applicable statutory, regulatory and
interpretive restrictions regarding foreign ownership or control of U.S. air
carriers or adversely affecting the Corporation's operating certificates or
authorities, and (b) "Voting Stock" means all outstanding shares of capital
stock of the Corporation issued from time to time by the Corporation and
beneficially owned by Aliens which, but for the provisions of the
Corporation's Articles of Incorporation, by their terms may vote (at the time
such determination is made) for the election of Directors of the Corporation.
Section 2.14. Recording of Shares. If at any time there exist shares
of Voting Stock that are Alien Stock but that are not registered in the
Foreign Stock Record, the beneficial owner thereof may request, in writing,
the Corporation to register ownership of such shares on the Foreign Stock
Record and the Corporation shall comply with such request, subject to the
limitation set forth in the preceding Section 2. The order in which Alien
Stock shall be registered on the Foreign Stock Record shall be chronological,
based on the date the Corporation received a written request to so register
such shares of Alien Stock. If at any time the Corporation shall find that
the combined voting power of Voting Stock then registered in the Foreign Stock
Record exceeds the Maximum Percentage, there shall be removed from the Foreign
Stock Record the registration of such number of shares so registered as is
sufficient to reduce the combined voting power of the shares so registered to
an amount not in excess of the Maximum Percentage. The order in which such
shares shall be removed shall be reverse chronological order based upon the
date the Corporation received a written request to so register such shares of
Alien Stock.
ARTICLE III
DIRECTORS
Section 3.01 General Powers. The property, affairs, and business of
the corporation shall be managed by its Board of Directors. The Board of
Directors may exercise all the powers of the corporation whether derived from
law or the Articles of Incorporation, except such powers as are by statute, by
the Articles of Incorporation or by these Bylaws, vested solely in the
shareholders of the corporation.
Section 3.02 Number, Term, and Qualifications. The Board of Directors
shall consist of three to nine persons. Increases or decreases to said number
may be made, within the numbers authorized by the Articles of Incorporation,
as the Board of Directors shall from time to time determine by amendment to
these Bylaws. An increase or a decrease in the number of the members of the
Board of Directors may also be had upon amendment to these Bylaws by a
majority vote of all of the shareholders, and the number of directors to be so
increased or decreased shall be fixed upon a majority vote of all of the
shareholders of the corporation. Each director shall hold office until the
next annual meeting of shareholders of the corporation and until his or her
successor shall have been elected and shall have qualified. Directors need
not be residents of the state of incorporation or shareholders of the
corporation. Except as otherwise permitted by or consistent with applicable
statutory, regulatory and interpretive restrictions regarding foreign
ownership or control of U.S. air carriers, at no time shall more than
one-third of the Directors in office be Aliens (as defined in the
Corporation's Articles of Incorporation).
Section 3.03 Classification of Directors. In lieu of electing the
entire number of directors annually, the Board of Directors may provide that
the directors be divided into either two or three classes, each class to be as
nearly equal in number as possible, the term of office of the directors of the
first class to expire at the first annual meeting of shareholders after their
election, that of the second class to expire at the second annual meeting
after their election, and that of the third class, if any, to expire at the
third annual meeting after their election. At each annual meeting after such
classification, the number of directors equal to the number of the class whose
term expires at the time of such meeting shall be elected to hold office until
the second succeeding annual meeting, if there be two classes, or until the
third succeeding annual meeting, if there be three classes.
Section 3.04 Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this bylaw immediately
following, and at the same place as, the annual meeting of shareholders. The
Board of Directors may provide by resolution the time and place, either within
or without the state of incorporation, for the holding of additional regular
meetings without other notice than such resolution.
Section 3.05 Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the president, vice president,
or any two directors. The person or persons authorized to call special
meetings of the Board of Directors may fix any place, either within or without
the state of incorporation, as the place for holding any special meeting of
the Board of Directors called by them.
Section 3.06 Meetings by Telephone Conference Call. Members of the
Board of Directors may participate in a meeting of the Board of Directors or a
committee of the Board of Directors by means of conference telephone or
similar communication equipment by means of which all persons participating in
the meeting can hear each other, and participation in a meeting pursuant to
this Section shall constitute presence in person at such meeting.
Section 3.07 Notice. Notice of any special meeting shall be given at
least ten (10) days prior thereto by written notice delivered personally or
mailed to each director at his or her regular business address or residence,
or by telegram. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail so addressed, with postage thereon
prepaid. If notice be given by telegram, such notice shall be deemed to be
delivered when the telegram is delivered to the telegraph company. Any
director may waive notice of any meeting. Attendance of a director at a
meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting solely for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened.
Section 3.08 Quorum. A majority of the number of directors shall
constitute a quorum for the transaction of business at any meeting of the
Board of Directors, but if less than a majority is present at a meeting, a
majority of the directors present may adjourn the meeting from time to time
without further notice.
Section 3.09 Manner of Acting. The act of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the
Board of Directors, and the individual directors shall have no power as such.
Section 3.10 Vacancies and Newly Created Directorship. If any
vacancies shall occur in the Board of Directors by reason of death,
resignation or otherwise, or if the number of directors shall be increased,
the directors then in office shall continue to act and such vacancies or newly
created directorships shall be filled by a vote of the directors then in
office, though less than a quorum, in any way approved by the meeting. Any
directorship to be filled by reason of removal of one or more directors by the
shareholders may be filled by election by the shareholders at the meeting at
which the director or directors are removed.
Section 3.11 Compensation. By resolution of the Board of Directors,
the directors may be paid their expenses, if any, of attendance at each
meeting of the Board of Directors, and may be paid a fixed sum for attendance
at each meeting of the Board of Directors or a stated salary as director. No
such payment shall preclude any director from serving the corporation in any
other capacity and receiving compensation therefor.
Section 3.12 Presumption of Assent. A director of the corporation who
is present at a meeting of the Board of Directors at which action on any
corporate matter is taken shall be presumed to have assented to the action
taken unless his or her or her dissent shall be entered in the minutes of the
meeting, unless he or she shall file his or her or her written dissent to such
action with the person acting as the secretary of the meeting before the
adjournment thereof, or shall forward such dissent by registered or certified
mail to the secretary of the corporation immediately after the adjournment of
the meeting. Such right to dissent shall not apply to a director who voted in
favor of such action.
Section 3.13 Resignations. A director may resign at any time by
delivering a written resignation to either the president, a vice president,
the secretary, or assistant secretary, if any. The resignation shall become
effective on its acceptance by the Board of Directors; provided, that if the
board has not acted thereon within ten days from the date presented, the
resignation shall be deemed accepted.
Section 3.14 Written Consent to Action by Directors. Any action
required to be taken at a meeting of the directors of the corporation or any
other action which may be taken at a meeting of the directors or of a
committee, may be taken without a meeting, if a consent in writing, setting
forth the action so taken, shall be signed by all of the directors, or all of
the members of the committee, as the case may be. Such consent shall have the
same legal effect as a unanimous vote of all the directors or members of the
committee.
Section 3.15 Removal. At a meeting expressly called for that purpose,
one or more directors may be removed by a vote of a majority of the shares of
outstanding stock of the corporation entitled to vote at an election of
directors.
ARTICLE IV
OFFICERS
Section 4.01 Number. The officers of the corporation shall be a
president, one or more vice-presidents, as shall be determined by resolution
of the Board of Directors, a secretary, a treasurer, and such other officers
as may be appointed by the Board of Directors. The Board of Directors may
elect, but shall not be required to elect, a chairman of the board and the
Board of Directors may appoint a general manager.
Section 4.02 Election, Term of Office, and Qualifications. The
officers shall be chosen by the Board of Directors annually at its annual
meeting. In the event of failure to choose officers at an annual meeting of
the Board of Directors, officers may be chosen at any regular or special
meeting of the Board of Directors. Each such officer (whether chosen at an
annual meeting of the Board of Directors to fill a vacancy or otherwise) shall
hold his or her office until the next ensuing annual meeting of the Board of
Directors and until his or her successor shall have been chosen and qualified,
or until his or her death, or until his or her resignation or removal in the
manner provided in these Bylaws. Any one person may hold any two or more of
such offices, except that the president shall not also be the secretary. No
person holding two or more offices shall act in or execute any instrument in
the capacity of more than one office. The chairman of the board, if any,
shall be and remain a director of the corporation during the term of his or
her office. No other officer need be a director.
Section 4.03 Subordinate Officers, Etc. The Board of Directors from
time to time may appoint such other officers or agents as it may deem
advisable, each of whom shall have such title, hold office for such period,
have such authority, and perform such duties as the Board of Directors from
time to time may determine. The Board of Directors from time to time may
delegate to any officer or agent the power to appoint any such subordinate
officer or agents and to prescribe their respective titles, terms of office,
authorities, and duties. Subordinate officers need not be shareholders or
directors.
Section 4.04 Resignations. Any officer may resign at any time by
delivering a written resignation to the Board of Directors, the president, or
the secretary. Unless otherwise specified therein, such resignation shall
take effect on delivery.
Section 4.05 Removal. Any officer may be removed from office at any
special meeting of the Board of Directors called for that purpose or at a
regular meeting, by vote of a majority of the directors, with or without
cause. Any officer or agent appointed in accordance with the provisions of
Section 4.03 hereof may also be removed, either with or without cause, by any
officer on whom such power of removal shall have been conferred by the Board
of Directors.
Section 4.06 Vacancies and Newly Created Offices. If any vacancy shall
occur in any office by reason of death, resignation, removal,
disqualification, or any other cause, or if a new office shall be created,
then such vacancies or new created offices may be filled by the Board of
Directors at any regular or special meeting.
Section 4.07 The Chairman of the Board. The Chairman of the Board, if
there be such an officer, shall have the following powers and duties.
(a) He or she shall preside at all shareholders' meetings;
(b) He or she shall preside at all meetings of the Board of Directors;
and
(c) He or she shall be a member of the executive committee, if any.
Section 4.08 The President. The president shall have the following
powers and duties:
(a) If no general manager has been appointed, he or she shall be the
chief executive officer of the corporation, and, subject to the direction of
the Board of Directors, shall have general charge of the business, affairs,
and property of the corporation and general supervision over its officers,
employees, and agents;
(b) If no chairman of the board has been chosen, or if such officer is
absent or disabled, he or she shall preside at meetings of the shareholders
and Board of Directors;
(c) He or she shall be a member of the executive committee, if any;
(d) He or she shall be empowered to sign certificates representing
shares of the corporation, the issuance of which shall have been authorized by
the Board of Directors; and
(e) He or she shall have all power and shall perform all duties
normally incident to the office of a president of a corporation, and shall
exercise such other powers and perform such other duties as from time to time
may be assigned to him or her by the Board of Directors.
Section 4.09 The Vice Presidents. The Board of Directors may, from
time to time, designate and elect one or more vice presidents, one of whom may
be designated to serve as executive vice president. Each vice president shall
have such powers and perform such duties as from time to time may be assigned
to him or her by the Board of Directors or the president. At the request or
in the absence or disability of the president, the executive vice president
or, in the absence or disability of the executive vice president, the vice
president designated by the Board of Directors or (in the absence of such
designation by the Board of Directors) by the president, the senior vice
president, may perform all the duties of the president, and when so acting,
shall have all the powers of, and be subject to all the restrictions upon, the
president.
Section 4.10 The Secretary. The secretary shall have the following
powers and duties:
(a) He or she shall keep or cause to be kept a record of all of the
proceedings of the meetings of the shareholders and of the board or directors
in books provided for that purpose;
(b) He or she shall cause all notices to be duly given in accordance
with the provisions of these Bylaws and as required by statute;
(c) He or she shall be the custodian of the records and of the seal of
the corporation, and shall cause such seal (or a facsimile thereof) to be
affixed to all certificates representing shares of the corporation prior to
the issuance thereof and to all instruments, the execution of which on behalf
of the corporation under its seal shall have been duly authorized in
accordance with these Bylaws, and when so affixed, he or she may attest the
same;
(d) He or she shall assume that the books, reports, statements,
certificates, and other documents and records required by statute are properly
kept and filed;
(e) He or she shall have charge of the share books of the corporation
and cause the share transfer books to be kept in such manner as to show at any
time the amount of the shares of the corporation of each class issued and
outstanding, the manner in which and the time when such stock was paid for,
the names alphabetically arranged and the addresses of the holders of record
thereof, the number of shares held by each holder and time when each became
such holder or record; and he or she shall exhibit at all reasonable times to
any director, upon application, the original or duplicate share register. He
or she shall cause the share book referred to in Section 6.04 hereof to be
kept and exhibited at the principal office of the corporation, or at such
other place as the Board of Directors shall determine, in the manner and for
the purposes provided in such Section;
(f) He or she shall be empowered to sign certificates representing
shares of the corporation, the issuance of which shall have been authorized by
the Board of Directors; and
(g) He or she shall perform in general all duties incident to the
office of secretary and such other duties as are given to him or her by these
Bylaws or as from time to time may be assigned to him or her by the Board of
Directors or the president.
Section 4.11 The Treasurer. The treasurer shall have the following
powers and duties:
(a) He or she shall have charge and supervision over and be responsible
for the monies, securities, receipts, and disbursements of the corporation;
(b) He or she shall cause the monies and other valuable effects of the
corporation to be deposited in the name and to the credit of the corporation
in such banks or trust companies or with such banks or other depositories as
shall be selected in accordance with Section 5.03 hereof;
(c) He or she shall cause the monies of the corporation to be disbursed
by checks or drafts (signed as provided in Section 5.04 hereof) drawn on the
authorized depositories of the corporation, and cause to be taken and
preserved property vouchers for all monies disbursed;
(d) He or she shall render to the Board of Directors or the president,
whenever requested, a statement of the financial condition of the corporation
and of all of this transactions as treasurer, and render a full financial
report at the annual meeting of the shareholders, if called upon to do so;
(e) He or she shall cause to be kept correct books of account of all
the business and transactions of the corporation and exhibit such books to any
director on request during business hours;
(f) He or she shall be empowered from time to time to require from all
officers or agents of the corporation reports or statements given such
information as he or she may desire with respect to any and all financial
transactions of the corporation; and
(g) He or she shall perform in general all duties incident to the
office of treasurer and such other duties as are given to him or her by these
Bylaws or as from time to time may be assigned to him or her by the Board of
Directors or the president.
Section 4.12 General Manager. The Board of Directors may employ and
appoint a general manager who may, or may not, be one of the officers or
directors of the corporation. The general manager, if any shall have the
following powers and duties:
(a) He or she shall be the chief executive officer of the corporation
and, subject to the directions of the Board of Directors, shall have general
charge of the business affairs and property of the corporation and general
supervision over its officers, employees, and agents:
(b) He or she shall be charged with the exclusive management of the
business of the corporation and of all of its dealings, but at all times
subject to the control of the Board of Directors;
(c) Subject to the approval of the Board of Directors or the executive
committee, if any, he or she shall employ all employees of the corporation, or
delegate such employment to subordinate officers, and shall have authority to
discharge any person so employed; and
(d) He or she shall make a report to the president and directors as
often as required, setting forth the results of the operations under his or
her charge, together with suggestions looking toward improvement and
betterment of the condition of the corporation, and shall perform such other
duties as the Board of Directors may require.
Section 4.13 Salaries. The salaries and other compensation of the
officers of the corporation shall be fixed from time to time by the Board of
Directors, except that the Board of Directors may delegate to any person or
group of persons the power to fix the salaries or other compensation of any
subordinate officers or agents appointed in accordance with the provisions of
Section 4.03 hereof. No officer shall be prevented from receiving any such
salary or compensation by reason of the fact that he or she is also a director
of the corporation.
Section 4.14 Surety Bonds. In case the Board of Directors shall so
require, any officer or agent of the corporation shall execute to the
corporation a bond in such sums and with such surety or sureties as the Board
of Directors may direct, conditioned upon the faithful performance of his or
her duties to the corporation, including responsibility for negligence and for
the accounting of all property, monies, or securities of the corporation which
may come into his or her hands.
ARTICLE V
EXECUTION OF INSTRUMENTS, BORROWING OF MONEY,
AND DEPOSIT OF CORPORATE FUNDS
Section 5.01 Execution of Instruments. Subject to any limitation
contained in the Articles of Incorporation or these Bylaws, the president or
any vice president or the general manager, if any, may, in the name and on
behalf of the corporation, execute and deliver any contract or other
instrument authorized in writing by the Board of Directors. The Board of
Directors may, subject to any limitation contained in the Articles of
Incorporation or in these Bylaws, authorize in writing any officer or agent to
execute and delivery any contract or other instrument in the name and on
behalf of the corporation; any such authorization may be general or confined
to specific instances.
Section 5.02 Loans. No loans or advances shall be contracted on behalf
of the corporation, no negotiable paper or other evidence of its obligation
under any loan or advance shall be issued in its name, and no property of the
corporation shall be mortgaged, pledged, hypothecated, transferred, or
conveyed as security for the payment of any loan, advance, indebtedness, or
liability of the corporation, unless and except as authorized by the Board of
Directors. Any such authorization may be general or confined to specific
instances.
Section 5.03 Deposits. All monies of the corporation not otherwise
employed shall be deposited from time to time to its credit in such banks and
or trust companies or with such bankers or other depositories as the Board of
Directors may select, or as from time to time may be selected by any officer
or agent authorized to do so by the Board of Directors.
Section 5.04 Checks, Drafts, Etc. All notes, drafts, acceptances,
checks, endorsements, and, subject to the provisions of these Bylaws,
evidences of indebtedness of the corporation, shall be signed by such officer
or officers or such agent or agents of the corporation and in such manner as
the Board of Directors from time to time may determine. Endorsements for
deposit to the credit of the corporation in any of its duly authorized
depositories shall be in such manner as the Board of Directors from time to
time may determine.
Section 5.05 Bonds and Debentures. Every bond or debenture issued by
the corporation shall be evidenced by an appropriate instrument which shall be
signed by the president or a vice president and by the secretary and sealed
with the seal of the corporation. The seal may be a facsimile, engraved or
printed. Where such bond or debenture is authenticated with the manual
signature of an authorized officer of the corporation or other trustee
designated by the indenture of trust or other agreement under which such
security is issued, the signature of any of the corporation's officers named
thereon may be a facsimile. In case any officer who signed, or whose
facsimile signature has been used on any such bond or debenture, should cease
to be an officer of the corporation for any reason before the same has been
delivered by the corporation, such bond or debenture may nevertheless be
adopted by the corporation and issued and delivered as through the person who
signed it or whose facsimile signature has been used thereon had not ceased to
be such officer.
Section 5.06 Sale, Transfer, Etc. of Securities. Sales, transfers,
endorsements, and assignments of stocks, bonds, and other securities owned by
or standing in the name of the corporation, and the execution and delivery on
behalf of the corporation of any and all instruments in writing incident to
any such sale, transfer, endorsement, or assignment, shall be effected by the
president, or by any vice president, together with the secretary, or by any
officer or agent thereunto authorized by the Board of Directors.
Section 5.07 Proxies. Proxies to vote with respect to shares of other
corporations owned by or standing in the name of the corporation shall be
executed and delivered on behalf of the corporation by the president or any
vice president and the secretary or assistant secretary of the corporation, or
by any officer or agent thereunder authorized by the Board of Directors.
ARTICLE VI
CAPITAL SHARES
Section 6.01 Share Certificates. Every holder of shares in the
corporation shall be entitled to have a certificate, signed by the president
or any vice president and the secretary or assistant secretary, and sealed
with the seal (which may be a facsimile, engraved or printed) of the
corporation, certifying the number and kind, class or series of shares owned
by him or her in the corporation; provided, however, that where such a
certificate is countersigned by (a) a transfer agent or an assistant transfer
agent, or (b) registered by a registrar, the signature of any such president,
vice president, secretary, or assistant secretary may be a facsimile. In case
any officer who shall have signed, or whose facsimile signature or signatures
shall have been used on any such certificate, shall cease to be such officer
of the corporation, for any reason, before the delivery of such certificate by
the corporation, such certificate may nevertheless be adopted by the
corporation and be issued and delivered as though the person who signed it, or
whose facsimile signature or signatures shall have been used thereon, has not
ceased to be such officer. Certificates representing shares of the
corporation shall be in such form as provided by the statutes of the state of
incorporation. There shall be entered on the share books of the corporation
at the time of issuance of each share, the number of the certificate issued,
the name and address of the person owning the shares represented thereby, the
number and kind, class or series of such shares, and the date of issuance
thereof. Every certificate exchanged or returned to the corporation shall be
marked "Canceled" with the date of cancellation.
Section 6.02 Transfer of Shares. Transfers of shares of the
corporation shall be made on the books of the corporation by the holder of
record thereof, or by his or her attorney thereunto duly authorized by a power
of attorney duly executed in writing and filed with the secretary of the
corporation or any of its transfer agents, and on surrender of the certificate
or certificates, properly endorsed or accompanied by proper instruments of
transfer, representing such shares. Except as provided by law, the
corporation and transfer agents and registrars, if any, shall be entitled to
treat the holder of record of any stock as the absolute owner thereof for all
purposes, and accordingly, shall not be bound to recognize any legal,
equitable, or other claim to or interest in such shares on the part of any
other person whether or not it or they shall have express or other notice
thereof.
Section 6.03 Regulations. Subject to the provisions of this Article VI
and of the Articles of Incorporation, the Board of Directors may make such
rules and regulations as they may deem expedient concerning the issuance,
transfer, redemption, and registration of certificates for shares of the
corporation.
Section 6.04 Maintenance of Stock Ledger at Principal Place of
Business. A share book (or books where more than one kind, class, or series
of stock is outstanding) shall be kept at the principal place of business of
the corporation, or at such other place as the Board of Directors shall
determine, containing the names, alphabetically arranged, of original
shareholders of the corporation, their addresses, their interest, the amount
paid on their shares, and all transfers thereof and the number and class of
shares held by each. Such share books shall at all reasonable hours be
subject to inspection by persons entitled by law to inspect the same.
Section 6.05 Transfer Agents and Registrars. The Board of Directors
may appoint one or more transfer agents and one or more registrars with
respect to the certificates representing shares of the corporation, and may
require all such certificates to bear the signature of either or both. The
Board of Directors may from time to time define the respective duties of such
transfer agents and registrars. No certificate for shares shall be valid
until countersigned by a transfer agent, if at the date appearing thereon the
corporation had a transfer agent for such shares, and until registered by a
registrar, if at such date the corporation had a registrar for such shares.
Section 6.06 Closing of Transfer Books and Fixing of Record Date.
(a) The Board of Directors shall have power to close the share books of
the corporation for a period of not to exceed 50 days preceding the date of
any meeting of shareholders, or the date for payment of any dividend, or the
date for the allotment of rights, or capital shares shall go into effect, or a
date in connection with obtaining the consent of shareholders for any purpose.
(b) In lieu of closing the share transfer books as aforesaid, the Board
of Directors may fix in advance a date, not exceeding 50 days preceding the
date of any meeting of shareholders, or the date for the payment of any
dividend, or the date for the allotment of rights, or the date when any change
or conversion or exchange of capital shares shall go into effect, or a date in
connection with obtaining any such consent, as a record date for the
determination of the shareholders entitled to a notice of, and to vote at, any
such meeting and any adjournment thereof, or entitled to receive payment of
any such dividend, or to any such allotment of rights, or to exercise the
rights in respect of any such change, conversion or exchange of capital stock,
or to give such consent.
(c) If the share transfer books shall be closed or a record date set
for the purpose of determining shareholders entitled to notice of or to vote
at a meeting of shareholders, such books shall be closed for, or such record
date shall be, at least ten (10) days immediately preceding such meeting.
Section 6.07 Lost or Destroyed Certificates. The corporation may issue
a new certificate for shares of the corporation in place of any certificate
theretofore issued by it, alleged to have been lost or destroyed, and the
Board of Directors may, in its discretion, require the owner of the lost or
destroyed certificate or his or her legal representatives, to give the
corporation a bond in such form and amount as the Board of Directors may
direct, and with such surety or sureties as may be satisfactory to the board,
to indemnify the corporation and its transfer agents and registrars, if any,
against any claims that may be made against it or any such transfer agent or
registrar on account of the issuance of such new certificate. A new
certificate may be issued without requiring any bond when, in the judgment of
the Board of Directors, it is proper to do so.
Section 6.08 No Limitation on Voting Rights; Limitation on Dissenter's
Rights. To the extent permissible under the applicable law of any
jurisdiction to which the corporation may become subject by reason of the
conduct of business, the ownership of assets, the residence of shareholders,
the location of offices or facilities, or any other item, the corporation
elects not to be governed by the provisions of any statute that (i) limits,
restricts, modified, suspends, terminates, or otherwise affects the rights of
any shareholder to cast one vote for each share of common stock registered in
the name of such shareholder on the books of the corporation, without regard
to whether such shares were acquired directly from the corporation or from any
other person and without regard to whether such shareholder has the power to
exercise or direct the exercise of voting power over any specific fraction of
the shares of common stock of the corporation issued and outstanding or (ii)
grants to any shareholder the right to have his or her stock redeemed or
purchased by the corporation or any other shareholder on the acquisition by
any person or group of persons of shares of the corporation. In particular,
to the extent permitted under the laws of the state of incorporation, the
corporation elects not to be governed by any such provision, including the
provisions of the Nevada Control Share Acquisitions Act, Sections 78.378 to
78.3793, inclusive, of the Nevada Revised Statutes, or any statute of similar
effect or tenor.
ARTICLE VII
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 7.01 How Constituted. The Board of Directors may designate an
executive committee and such other committees as the Board of Directors may
deem appropriate, each of which committees shall consist of two or more
directors. Members of the executive committee and of any such other
committees shall be designated annually at the annual meeting of the Board of
Directors; provided, however, that at any time the Board of Directors may
abolish or reconstitute the executive committee or any other committee. Each
member of the executive committee and of any other committee shall hold office
until his or her successor shall have been designated or until his or her
resignation or removal in the manner provided in these Bylaws.
Section 7.02 Powers. During the intervals between meetings of the
Board of Directors, the executive committee shall have and may exercise all
powers of the Board of Directors in the management of the business and affairs
of the corporation, except for the power to fill vacancies in the Board of
Directors or to amend these Bylaws, and except for such powers as by law may
not be delegated by the Board of Directors to an executive committee.
Section 7.03 Proceedings. The executive committee, and such other
committees as may be designated hereunder by the Board of Directors, may fix
its own presiding and recording officer or officers, and may meet at such
place or places, at such time or times and on such notice (or without notice)
as it shall determine from time to time. It will keep a record of its
proceedings and shall report such proceedings to the Board of Directors at the
meeting of the Board of Directors next following.
Section 7.04 Quorum and Manner of Acting. At all meeting of the
executive committee, and of such other committees as may be designated
hereunder by the Board of Directors, the presence of members constituting a
majority of the total authorized membership of the committee shall be
necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of such committee. The members of
the executive committee, and of such other committees as may be designated
hereunder by the Board of Directors, shall act only as a committee and the
individual members thereof shall have no powers as such.
Section 7.05 Resignations. Any member of the executive committee, and
of such other committees as may be designated hereunder by the Board of
Directors, may resign at any time by delivering a written resignation to
either the president, the secretary, or assistant secretary, or to the
presiding officer of the committee of which he or she is a member, if any
shall have been appointed and shall be in office. Unless otherwise specified
herein, such resignation shall take effect on delivery.
Section 7.06 Removal. The Board of Directors may at any time remove
any member of the executive committee or of any other committee designated by
it hereunder either for or without cause.
Section 7.07 Vacancies. If any vacancies shall occur in the executive
committee or of any other committee designated by the Board of Directors
hereunder, by reason of disqualification, death, resignation, removal, or
otherwise, the remaining members shall, until the filling of such vacancy,
constitute the then total authorized membership of the committee and, provided
that two or more members are remaining, continue to act. Such vacancy may be
filled at any meeting of the Board of Directors.
Section 7.08 Compensation. The Board of Directors may allow a fixed
sum and expenses of attendance to any member of the executive committee, or of
any other committee designated by it hereunder, who is not an active salaried
employee of the corporation for attendance at each meeting of said committee.
ARTICLE VIII
INDEMNIFICATION, INSURANCE, AND
OFFICER AND DIRECTOR CONTRACTS
Section 8.01 Indemnification: Third Party Actions. The corporation
shall have the power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action,
or suit by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that he or she is or was a director, officer,
employee, or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise, against
expenses (including attorneys' fees) judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him or her in connection with
any such action, suit or proceeding, if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The termination of any action, suit, or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the corporation, and with respect to
any criminal action or proceeding, he or she had reasonable cause to believe
that his or her conduct was unlawful.
Section 8.02 Indemnification: Corporate Actions. The corporation
shall have the power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action
or suit by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that he or she is or was a director, officer,
employee, or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise, against
expenses (including attorneys' fees) actually and reasonably incurred by him
or her in connection with the defense or settlement of such action or suit, if
he or she acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the corporation, except that no
indemnification shall be made in respect of any claim, issue, or matter as to
which such a person shall have been adjudged to be liable for negligence or
misconduct in the performance of his or her duty to the corporation, unless
and only to the extent that the court in which the action or suit was brought
shall determine on application that, despite the adjudication of liability but
in view of all circumstances of the case, the person is fairly and reasonably
entitled to indemnity for such expenses as the court deems proper.
Section 8.03 Determination. To the extent that a director, officer,
employee, or agent of the corporation has been successful on the merits or
otherwise in defense of any action, suit, or proceeding referred to in
Sections 8.01 and 8.02 hereof, or in defense of any claim, issue, or matter
therein, he or she shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him or her in connection therewith.
Any other indemnification under Sections 8.01 and 8.02 hereof, shall be made
by the corporation upon a determination that indemnification of the officer,
director, employee, or agent is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in Sections 8.01 and 8.02
hereof. Such determination shall be made either (i) by the Board of Directors
by a majority vote of a quorum consisting of directors who were not parties to
such action, suit, or proceeding; or (ii) by independent legal counsel on a
written opinion; or (iii) by the shareholders by a majority vote of a quorum
of shareholders at any meeting duly called for such purpose.
Section 8.04 General Indemnification. The indemnification provided by
this Section shall not be deemed exclusive of any other indemnification
granted under any provision of any statute, in the corporation's Articles of
Incorporation, these Bylaws, agreement, vote of shareholders or disinterested
directors, or otherwise, both as to action in his or her official capacity and
as to action in another capacity while holding such office, and shall continue
as to a person who has ceased to be a director, officer, employee, or agent,
and shall inure to the benefit of the heirs and legal representatives of such
a person.
Section 8.05 Advances. Expenses incurred in defending a civil or
criminal action, suit, or proceeding as contemplated in this Section may be
paid by the corporation in advance of the final disposition of such action,
suit, or proceeding upon a majority vote of a quorum of the Board of Directors
and upon receipt of an undertaking by or on behalf of the director, officers,
employee, or agent to repay such amount or amounts unless if it is ultimately
determined that he or she is to indemnified by the corporation as authorized
by this Section.
Section 8.06 Scope of Indemnification. The indemnification authorized
by this Section shall apply to all present and future directors, officers,
employees, and agents of the corporation and shall continue as to such persons
who ceases to be directors, officers, employees, or agents of the corporation,
and shall inure to the benefit of the heirs, executors, and administrators of
all such persons and shall be in addition to all other indemnification
permitted by law.
8.07. Insurance. The corporation may purchase and maintain insurance
on behalf of any person who is or was a director, employee, or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise against any liability asserted
against him or her and incurred by him or her in any such capacity, or arising
out of his or her status as such, whether or not the corporation would have
the power to indemnify him or her against any such liability and under the
laws of the state of incorporation, as the same may hereafter be amended or
modified.
ARTICLE IX
FISCAL YEAR
The fiscal year of the corporation shall be fixed by resolution of the
Board of Directors.
ARTICLE X
DIVIDENDS
The Board of Directors may from time to time declare, and the
corporation may pay, dividends on its outstanding shares in the manner and on
the terms and conditions provided by the Articles of Incorporation and these
Bylaws.
ARTICLE XI
AMENDMENTS
All Bylaws of the corporation, whether adopted by the Board of Directors
or the shareholders, shall be subject to amendment, alteration, or repeal, and
new Bylaws may be made, except that:
(a) No Bylaws adopted or amended by the shareholders shall be altered
or repealed by the Board of Directors.
(b) No Bylaws shall be adopted by the Board of Directors which shall
require more than a majority of the voting shares for a quorum at a meeting of
shareholders, or more than a majority of the votes cast to constitute action
by the shareholders, except where higher percentages are required by law;
provided, however that (i) if any Bylaw regulating an impending election of
directors is adopted or amended or repealed by the Board of Directors, there
shall be set forth in the notice of the next meeting of shareholders for the
election of directors, the Bylaws so adopted or amended or repealed, together
with a concise statement of the changes made; and (ii) no amendment,
alteration or repeal of this Article XI shall be made except by the
shareholders.
ARTICLE XII
CONTROL SHARE ACQUISITIONS
Section 78.378, et seq., shall not apply to any control share
acquisitions of shares of this corporation.
CERTIFICATE OF SECRETARY
The undersigned does hereby certify that he or she is the secretary of U
S JET, INC., a corporation duly organized and existing under and by virtue of
the laws of the State of Nevada; that the above and foregoing Bylaws of said
corporation were duly and regularly adopted as such by the Board of Directors
of the corporation at a meeting of the Board of Directors, which was duly and
regularly held on the 25th day of August, 1998, and that the above and
foregoing Bylaws are now in full force and effect.
DATED THIS 25th day of August, 1998.
Paul A. Price, Secretary
<PAGE>
EXHIBIT C
AMERICAN COAL CORPORATION
FINANCIAL STATEMENTS
FOR THE YEARS ENDED
JUNE 30, 1998 AND 1997
<PAGE>
[Letterhead of Andersen, Andersen & Strong, L.C.]
Certified Public Accountants and Business Consultants
941 East 3300 South, Suite 202
Salt Lake City, Utah 84106
Telephone: 801-486-0096
Fax 801-486-0098
E-mail K Anderson @msn.com
Board of Directors
American Coal Corporation
Salt Lake City, Utah
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have audited the accompanying balance sheets of American Coal Corporation
(a development stage company) at June 30, 1998, and June 30, 1997 and the
statements of operations, stockholders' equity, and cash flows for the years
ended June 30, 1998 , 1997, and 1996 and the period July 2, 1986 (date of
inception) to June 30, 1998. These financial statements are the responsibility
of the Company's management. Our responsibility is to express an opinion on
these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and financial statement
presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of American Coal Corporation at
June 30, 1998, and June 30, 1997, and the results of operations, and cash
flows for the years ended June 30, 1998, 1997 and 1996 and the period July 2,
1986 (date of inception) to June 30, 1998, in conformity with generally
accepted accounting principles.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. As discussed in Note 1 to the
financial statements, the Company has been in the development stage since its
inception and has suffered recurring losses from operations, which raises
substantial doubt about its ability to continue as a going concern.
Management's plans in regard to these matters are described in Note 4. The
financial statements do not include any adjustments that might result from the
outcome of this uncertainty.
/s/ Andersen, Andersen & Strong
Salt Lake City, Utah
August 18, 1998
<PAGE>
<TABLE>
AMERICAN COAL CORPORATION
(A Development Stage Company)
BALANCE SHEETS
June 30, 1998, and June 30, 1997
<CAPTION>
June 30, June 30,
1998 1997
-------------- --------------
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash $ - $ -
--------------- --------------
Total Current Assets $ - $ -
=============== ==============
LIABILITIES AND STOCKHOLDERS'
EQUITY
CURRENT LIABILITIES
Accounts payable $ 9,348 $ 3,575
--------------- ---------------
Total Current Liabilities 9,348 3,575
--------------- ---------------
STOCKHOLDERS' EQUITY
Common stock
300,000,000 shares authorized,
at $0.001 par value, 9,900,000
shares issued and outstanding 9,900 9,900
Capital in excess of par value 47,801 47,801
Deficit accumulated during the
development stage (67,049) (61,276)
--------------- ---------------
Total Stockholders' Equity
(deficiency) (9,348) (3,575)
--------------- ---------------
$ - $ -
=============== ==============
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE>
<TABLE>
AMERICAN COAL CORPORATION
(A Development Stage Company)
STATEMENTS OF OPERATIONS
For the Years Ended June 30, 1998, 1997 and 1996
and the Period July 2, 1986
(Date of Inception) to June 30, 1998
<CAPTION>
July 2, 1986
(Date of Inception) to
1998 1997 1996 June 30, 1998
--------- ------- ------- ---------------------
<S> <C> <C> <C> <C>
SALES $ - $ - $ - $ 2,850,562
COST OF SALES - - - 2,418,648
--------- ------- -------- -------------------
Gross Profit - - - 431,914
EXPENSES 5,773 3,575 - 498,963
--------- ------- -------- -------------------
NET LOSS $ (5,773) $(3,575) $ - $ (67,049)
========= ======= ======== -------------------
NET LOSS PER COMMON
SHARE
Basic $ - $ - $ -
========= ======= ========
AVERAGE OUTSTANDING 9,900,000 9,900,000 9,900,000
SHARES ========= ========== =========
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE>
<TABLE>
AMERICAN COAL CORPORATION
(A Development Stage Company)
STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
Period from July 2, 1986 (Date of Inception)
to June 30, 1998
<CAPTION>
Common Stock Capital in
Excess of Accumulated
Shares Amount Par Value Deficit
<S> <C> <C> <C> <C>
Balance July 2, 1986
(date of inception) - $ - $ - $ -
Issuance of common stock for cash
- 1986 at $.001 6,000,000 6,000 - -
Issuance of common stock for cash -
net of issuance costs
- 1987 at $.065 700,000 700 44,001 -
Net operating income for the period
ended June 30, 1987 - - - 331
Issuance of common stock for all of
the outstanding stock of American
Coal Corporation-value unknown
-1987 1,200,000 1,200 (1,200) -
Contribution to capital -
expenses -1988 - - 5,000 -
Net operating loss for the year
ended June 30, 1988 - - - (48,949)
Issuance of common stock for all of
the outstanding stock of King
Koals, Inc.- 1989 at $.001 2,000,000 2,000 - -
Net operating loss for the year ended
June 30, 1989 - - - (169,294)
Net operating income for the year
ended June 30, 1990 - - - 160,211
Balance June 30, 1990 9,900,000 9,900 47,801 (57,701)
Balance June 30, 1996 9,900,000 9,900 47,801 (57,701)
Net operating loss for the year
ended June 30, 1997 - - - (3,575)
Balance June 30, 1997 9,900,000 $9,900 $ 47,801 $ (61,276)
Net operating loss for the year
ended June 30, 1998 - - - (5,773)
Balance June 30, 1998 9,900,000 $9,900 $ 47,801 $ (67,049)
</TABLE>
The accompanying notes are an integral part of these financial statements.
<TABLE>
AMERICAN COAL CORPORATION
(A Development Stage Company)
STATEMENT OF CASH FLOWS
For the Years Ended June 30, 1998, 1997 and 1996
and the Period from July 2, 1986 (Date of Inception) to June 30, 1998
<CAPTION>
July, 2, 1986
(Date of Inception)
1998 1997 1996 to June 30, 1998
-------- --------- --------- -------------------
<S> <C> <C> <C> <C>
CASH FLOWS FROM
OPERATING ACTIVITIES:
Net loss $(5,773) $ (3,575) $ - $ (67,049)
Adjustments to reconcile
net loss to net cash
provided by operating
activities:
Loss in investments - - - 2,000
Increase in
accounts payable 5,773 3,575 - 9,348
--------- --------- --------- -----------------
Net Cash From
Operations - - - (55,701)
--------- --------- --------- -----------------
CASH FLOWS FROM INVESTING
ACTIVITIES: - - - -
--------- --------- --------- -----------------
CASH FLOWS FROM FINANCING
ACTIVITIES:
Proceeds from issuance
of common stock and
contribution to capital - - - 55,701
--------- --------- --------- -----------------
Net Increase (Decrease)
in Cash - - - -
Cash at Beginning of Period - - - -
--------- --------- --------- -----------------
Cash at End of Period $ - $ - $ - $ -
========= ========= ========= =================
SCHEDULE OF NONCASH INVESTING
AND FINANCING ACTIVITIES
Issuance of 1,200,000 shares of common
stock for stock of American Coal Corporation - 1987 $ -
----------------
Issuance of 2,000,000 shares of common
stock for stock of King Koals, Inc. - 1989 $ 2,000
----------------
Contribution to capital - expenses - 1988 $ 5,000
----------------
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE>
AMERICAN COAL CORPORATION
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS
1. ORGANIZATION
The Company was incorporated under the laws of the state of Nevada on July 2,
1986 with authorized common stock of 300,000,000 shares at a par value of
$.001. with the name of Technical Solutions, Ltd. On July 3, 1989 the name
was changed to American Coal Corporation.
On March 25, 1989 the Company acquired all of the outstanding stock of King
Koals, Inc. in exchange for 2,000,000 common shares of the Company. The
transaction was reported as a pooling of interests and the operations of King
Koals, Inc. was combined with the Company in a business combination and
reported in consolidated financial statements and therefore the deficit
shown in the these financial statements includes the deficit of King Koals
Inc. King Koals, Inc. ceased operations in 1990, and until that time was in
the business of developing and operating coal leases.
The company has been in the development stage since inception and has been
engaged in the business of seeking mineral leases for potential development.
During 1990 the company abandoned its interest held in the subsidiary and its
efforts to develop and operate mineral leases, and since that date has
remained inactive.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Accounting Methods
- ------------------
The Company recognizes income and expenses based on the accrual method of
accounting.
Dividend Policy
- ---------------
The Company has not yet adopted a policy regarding payment of dividends.
Income Taxes
- ------------
At June 30, 1998, the Company had net operating losses carry forward of $
67,049. The tax benefit from the carry forwards have been fully offset by a
valuation reserve because the use of the future tax benefit is undeterminable
since the Company has no operations. The loss carryforwards expire starting in
the years 2004 through 2013.
Earnings (Loss) Per Share
- -------------------------
Earnings (loss) per share amounts are computed based on the weighted average
number of shares actually outstanding using the treasury stock method in
accordance with FASB statement No. 128..
<PAGE>
AMERICAN COAL CORPORATION
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS (Continued)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Financial Instruments
- ----------------------
The carrying amounts of financial instruments, including accounts payable,
are considered by management to be their estimated fair values. These values
are not necessarily indicative of the amounts that the Company could realize
in a current market exchange.
Estimates and Assumptions
- -------------------------
Management uses estimates and assumptions in preparing financial statements in
accordance with generally accepted accounting principles. Those estimates and
assumptions affect the reported amounts of the assets and liabilities, the
disclosure of contingent assets and liabilities, and the reported revenues and
expenses. Actual results could vary from the estimates that were assumed in
preparing these financial statements.
3. RELATED PARTY TRANSACTIONS
The statement of changes in stockholder's equity shows a total of 9,900,000
shares of common stock issued of which 6,000,000 shares were issued to
related parties in exchange for cash during 1986.
The officers and directors of the Company are involved in other business
activities and they may, in the future, become involved in additional business
ventures which also may require their attention. If a specific business
opportunity becomes available, such persons may face a conflict in selecting
between the Company and their other business interests. The Company has
formulated no policy for the resolution of such conflicts.
4. GOING CONCERN
The Company intends to acquire interests in various business opportunities
which, in the opinion of management, will provide a profit to the Company.
Continuation of the Company as a going concern is dependent upon obtaining
additional working capital and the management of the Company has developed a
strategy, which it believes will accomplish this objective through additional
equity funding which will enable the Company to operate in the future.
Management recognizes that, if it is unable to raise additional capital, it
cannot conduct any operations in the future.
<PAGE>
EXHIBIT D
EXCEPTIONS
None.
<PAGE>
EXHIBIT E
U S JET, INC.
UNAUDITED BALANCE SHEET AND INCOME STATEMENT
FOR THE PERIOD ENDED JUNE 30, 1998
<TABLE>
U S JET, INC. and Subsidiaries
Unaudited Combined Consolidated Balance Sheet (United States Dollars)
June 30, 1998
<CAPTION>
Assets
<S> <C> <C>
Current Assets
Cash and Equivalents 98,868
Deposits 182,717
Accounts Receivable 1,110,803
Inventory 702,339
Escrowed Funds 120,257
Utility Deposits 18,000
Total Current Assets 2,232,984
Property and Equipment*
Real Estate Properties* 1,611,926
Support Equipment 185,000
Aircraft Parts & Rotables 2,500
Transportation Equip 419,563
Computer Equipment 535,250
Office Equipment 34,500
Other - Tech & Manuals 1,275,351
Total Property and Equipment* 4,084,090
Total Assets*: 6,317,074
*Excludes $8,400,000 in appreciated value based upon real estate
appraisal of principal properties.
Liabilities and Stockholders' Equity
Current Liabilities
Accounts Payable 91,422
Notes Payable 1,012,554
Taxes Payable 12,197
Total Current Liabilities 1,116,173
Long Term Debt
Notes Payable 1,039,221
Long Term Debt 1,977,358
Total Long Term Debt 3,016,579
Total Liabilities: 4,132,752
Total Stockholders' Equity: 2,184,322
Total Liabilities and Stockholders' Equity: 6,317,074
</TABLE>
<TABLE>
U S JET, INC. and Subsidiaries
Unaudited Combined Consolidated Income Statement
6 Months Ending June 30, 1998
<CAPTION>
Income
<S> <C> <C>
Sales 6,628,984
Cost of Goods (5,657,919)
Gross Profit from Sales 71,065
Rental Income 48,614
Misc. Service Income 13,892
Transportation Income 6,122
Other Revenue:
Interest income 4,203
Purchase Discounts 102,735
Total Income 1,146,631
Expenses
Operating Expenses:
Advertising 3,816
Accounting 11,058
Amortization 841
Bank Charges 735
NSF Checks 1,506
Computer supplies/software 13,210
Consulting fees 8,904
Contributions 3,747
Contract Labor 20,556
Dues & Subscriptions 2,083
Data Processing 6,769
Depreciation 21,954
Drug testing - Employees 1,095
Equipment Rentals 6,190
Equipment repair/supplies 3,188
Fire equipment & supplies 1,388
Freight (4,689)
Insurance - general 50,789
Insurance - emp. group 65,262
Interest 174,610
Legal 7,709
Misc. 11,373
Office supplies 10,776
Printing 321
Postage 4,726
Rent 65,136
Repairs & Maintenance 14,064
Salaries 658,266
Sales Expense 10,309
Security & alarm 2,069
Taxes & Licenses 5,636
Taxes-payroll 90,823
Taxes-property 1,941
Telephone 24,319
Travel & Ent 52,732
Utilities 90,458
Vehicles - leased 90,608
Vehicle. licenses 903
Vehicle repairs 54,564
Gas, Tires & Oil 63,375
Warehouse supplies 20,972
Workers Comp Ins. 3,324
Total Expenses: 1,677,416
Pre-Tax Net Income (530,785)
</TABLE>
The accompanying footnotes are an integral part of these financial statements.
Footnotes to Financials.
1. The Company's operations prior to 1998 were primarily limited to
start-up activities, with normal operations set to commence in mid-1998. As
such, the Company's revenues and expenses during those periods are not
indicative of the revenues and expenses which will be incurred by the Company
in 1998. The Company does not believe that any comparison of periods prior to
1998 with later periods would be meaningful.
2. The Company believes that the cash flow generated from its operations
and the proceeds from existing mortgage financing will likely be sufficient to
meet its normal ongoing liquidity needs for the remainder of the third quarter
of 1998. The Company does anticipate that it will, however, have to seek
additional financing for operating capital and for the acquisition of a
portion of its proposed fleet of aircraft. It has received preliminary
commitments from certain lenders for a credit facility for the acquisitions
and believes that it will obtain the necessary financing for such aircraft;
however, there can be no assurance that such financing will be available to
the Company or that any such financing obtained will be on satisfactory terms
and conditions.
3. The Company does not anticipate paying cash dividends on its capital
stock in the foreseeable future.
4. The foregoing financial statements of the Company have been prepared
by management of the Company and have not been reviewed or audited by the
Company's independent accountants, although an audit of the financial
statements is in process.
5. The Company is a startup enterprise, with no established history of
operations and earnings, and a management team in formation. There can be no
assurance that the strategic and economic objectives outlined in the Company's
business plan will be achieved.
<PAGE>
EXHIBIT F
EXCEPTIONS - U S JET REPRESENTATIONS AND WARRANTIES
4.3. Capitalization. On or about March 27, 1998, U S Jet executed and
forwarded a written Stock Option Agreement to OXFORD FIRST CAPITAL, LLC, a
Nevada limited liability company ("Oxford"), providing for an option to
acquire Seventy-three Thousand Five Hundred (73,500) of the Company's
authorized but unissued common shares. Said agreement has never been executed
and returned by Oxford to U S Jet. By the terms of a subsequent agreement
between U S Jett and Oxford, U S Jet has the right, upon payment of $40,000 to
Oxford, to acquire all of Oxford's right under said agreement at any time
prior to October 7, 1998.
4.4. Financial Statements. The financial statements of U S Jet have been
prepared by management of the Company, exercising best efforts, and have not
yet been reviewed or audited by the Company's independent accountants. The
financial statements are therefore subject to adjustments and revision as
necessary to conform to generally accepted accounting principles and correct
any management errors.
4. 5. Interim Changes.
a. Since the date of the financial statements, U S Jet has engaged
in various transactions, any one of which would be material but not adverse,
pertaining to (1) equipment leasing: 00 aircraft purchase and leasing
transactions; (W) real estate acquisitions; and (iv) acquisition transactions
involving share exchanges.
4.7. Title to Property.
a. The warehouse terminal property of U S Jet is subject to
mortgage indebtedness which has provided funds for the purchase and
refurbishment of the property, and for operating capital;
b. The airport property of U S Jet is subject to mortgage
indebtedness which has provided funds for refinancing prior indebtedness and
for operating capital;
c. Substantially all of the transportation and aircraft ground
handling equipment of U S Jet is encumbered by security interests securing the
indebtedness incurred to obtain the funds used to purchase the equipment.
4. 10. Tax Returns. The only returns required to be filed pertain to the
fiscal year ending December 31, 1997, for which no taxes are due. As a result
(and in reliance on the. advice of U S Jet's independent accountants, that
there will be no adverse consequences), the 1997 returns have not been timely
filed.
<PAGE>
EXHIBIT G
Standard Registrar & Transfer Co.
12528 So. 1840 East
Draper, Utah 84020
American Coal Corporation
1969 West North Temple
Salt Lake City, Utah 84116
Re: Exchange of shares of U S Jet, Inc., a Delaware
corporation ("U S Jet"), for shares of American Coal
Corporation, a Nevada corporation ("American Coal or
"Company")
Dear Ladies and Gentlemen:
Pursuant to that certain Agreement and Plan of Merger (the "Plan"
or the "Merger") between the undersigned, U S Jet and the other stockholders
of U S Jet, and American Coal, I acknowledge that I have approved this
exchange; that I am aware of all of the terms and conditions of the Plan; that
I have received and personally reviewed a copy of any and all material
documents regarding the Company, including, but not limited to Articles of
Incorporation, Bylaws, minutes of meetings of directors and stockholders,
financial statements and reports filed with the Securities and Exchange
Commission during the past twelve months. I represent and warrant that no
director or officer of the Company or any associate of either has solicited
this exchange; that I am an "accredited investor" as that term is known under
the Rules and Regulations of the Securities and Exchange Commission (see
Exhibit "A" hereto); and/or, I represent and warrant that I have sufficient
knowledge and experience to understand the nature of the exchange and am fully
capable of bearing the economic risk of the loss of my entire cost basis.
I further understand that immediately prior to the completion of
the Plan, American Coal had little, if any assets, of any measurable value,
and that in actuality, the completion of the Plan and the exchange of my
shares of U S Jet for shares of American Coal results in a decrease in the
actual percentage of ownership that my shares of U S Jet represented in U S
Jet prior to the completion of the Plan.
I understand that you have and will make books and records of your
Company available to me for my inspection in connection with the contemplated
exchange of my shares, and that I have been encouraged to review the
information and ask any questions I may have concerning the information of any
director or officer of the Company or of the legal and accounting firms for
the Company. I understand that the accounting firm for American Coal is
Andersen, Andersen & Strong, L.C., 941 East 3300 South, Suite 202, Salt Lake
City, Utah 84106, Telephone: 801-486-0096; and that legal counsel for American
Coal is Leonard W. Burningham, Esq., 455 East 5th South, Suite 205, Salt Lake
City, Utah 84111, Telephone: 801-363-7411.
I also understand that I must bear the economic risk of ownership
of any of the American Coal shares for a long period of time, the minimum of
which will be one (1) year, as these shares are "unregistered" shares and may
not be sold unless any subsequent offer or sale is registered with the United
States Securities and Exchange Commission or otherwise exempt from the
registration requirements of the Securities Act of 1933, as amended (the
"Act"), or other applicable laws, rules and regulations.
I intend that you rely on all of my representations made herein
and those in the personal questionnaire (if applicable) I provided to U S Jet
for use by American Coal as they are made to induce you to issue me the shares
of American Coal under the Plan, and I further represent (of my personal
knowledge or by virtue of my reliance on one or more personal
representatives), and agree as follows, to-wit:
1. That the shares being acquired are being received for
investment purposes and not with a view toward further distribution;
2. That I have a full and complete understanding of the phrase
"for investment purposes and not with a view toward further distribution";
3. That I understand the meaning of "unregistered shares" and
know that they are not freely tradeable;
4. That any stock certificate issued by you to me in connection
with the shares being acquired shall be imprinted with a legend restricting
the sale, assignment, hypothecation or other disposition unless it can be made
in accordance with applicable laws, rules and regulations;
5. I agree that the stock transfer records of your Company
shall reflect that I have requested the Company not to effect any transfer of
any stock certificate representing any of the shares being acquired unless I
shall first have obtained an opinion of legal counsel to the effect that the
shares may be sold in accordance with applicable laws, rules and regulations,
and I understand that any opinion must be from legal counsel satisfactory to
the Company and, regardless of any opinion, I understand that the exemption
covered by any opinion must in fact be applicable to the shares;
6. That I shall not sell, offer to sell, transfer, assign,
hypothecate or make any other disposition of any interest in the shares being
acquired except as may be pursuant to any applicable laws, rules and
regulations;
7. I fully understand that my shares which are being exchanged
for shares of the Company are "risk capital," and I am fully capable of
bearing the economic risks attendant to this investment, without
qualification; and
8. I also understand that without approval of counsel for
American Coal, all shares of American Coal to be issued and delivered to me in
exchange for my shares of U S Jet shall be represented by one stock
certificate only and which such stock certificate shall be imprinted with the
following legend or a reasonable facsimile thereof on the front and reverse
sides thereof:
The shares of stock represented by this certificate
have not been registered under the Securities Act of
1933, as amended, and may not be sold or otherwise
transferred unless compliance with the registration
provisions of such Act has been made or unless
availability of an exemption from such registration
provisions has been established, or unless sold
pursuant to Rule 144 under the Act.
Any request for more than one stock certificate must be
accompanied by a letter signed by the requesting stockholder setting forth all
relevant facts relating to the request. American Coal will attempt to
accommodate any stockholders' request where American Coal views the request is
made for valid business or personal reasons so long as in the sole discretion
of American Coal, the granting of the request will not facilitate a "public"
distribution of unregistered shares of common voting stock of American Coal.
Very truly yours,
Price Family Limited Partnership
/s/ Paul A. Price, General Partner
/s/ Kenneth R. Debree
/s/ Bill Markovich, Jr.
/s/ L. William Hegland
/s/ Leonard W. Burningham, Esq.
/s/ Johnny C. Chao
/s/ Jean P. DeBree
<PAGE>
EXHIBIT "H"
PERMITTED U S JET TRANSACTIONS
Description of Transaction Economic Fundamentals of Transaction
1. SERVICE DISTRIBUTING, INC.
Statutory merger of target Food distributor with refrigerated
company into wholly owned warehouse facility in Bozeman, Montana,
subsidiary of U S Jet, with with approx. $15 million annual revenues,
30,000 new common shares of serving nearly all of Montana.
U S Jet stock to be issued
for 100% of target's shares. Net Value of Acquisition: $300,000
2. SHEEHAN'S MAJESTIC
Statutory merger of target Food distributor with equipment,inventory,
company into wholly owned and accounts, to be relocated to U S Jet
subsidiary of U S Jet, with refrigerated warehouse in Butte, Montana.
uncertain number of new Annual revenues approx. $24 million.
common shares of U S
Jet stock to be issued for
100% of target's shares. Net Value of Acquisition: Est. $4 million.
3. MONTANA EXPRESS
Statutory merger of target Quality interstate motor carrier,primarily
company into wholly owned serving refrigerated storage and
subsidiary of U S Jet, with transportation needs of regional
uncertain number of new supermarket chains. Annual revenues
common shares of U S unknown but estimated at $65 million.
Jet stock to be issued for
100% of target's shares. Net Value of Acquisition: Est. $6 million.
4. CERTIFICATED AIRLINE
Statutory merger of target Operating certificated air carrier,
company, holding Part 121 enabling U S Jet to begin operations
airline certificate, into immediately for its own account, using
U S Jet, with uncertain Boeing 727 and Boeing 747 aircraft under
number of new common shares consideration.
of U S Jet to be issued for
100% of target's shares.
5. HELLER FINANCIAL GUARANTEE
Issuance of approx. 100,000 $1 million of stock to be deposited until
U S Jet common shares to financial guarantee is released.
secure its obligations under
an agreement for a $1 million
financial guarantee to be
issued securing U S Jet's
obligations under a pending
equipment lease transaction
with Heller Financial
for trucks, computers, aircraft.
6. BOEING 727 FREIGHTER
LEASE-PURCHASE $250,000 value of stock to be deposited
Issuance of approx. 25,000 until purchase is completed.
U S Jet common shares to
secure its obligations
for security deposit under
an agreement to lease Boeing
727 freighter with Purchase
Rights.
7. HELLER FINANCIAL
Long term lease of tractor
trucks, computer equipment,
and aircraft. $5 million
8. CATHAY PACIFIC
Purchase from Cathay Pacific
of 9 Boeing 747 aircraft, 5
freighters 4 passenger, with
7 (4 freighters 3 passenger)
to be leased back to seller.
Several of leased back
aircraft will be operated for
U S Jet (on an hourly fee
basis) on cargo contracts of
U S Jet. The obligations of
U S Jet under the purchase
financing to be guaranteed
by a private party (for
consideration not yet
negotiated, possibly stock of
U S Jet) $450 million
<PAGE>
EXHIBIT I
CERTIFICATE OF OFFICER PURSUANT TO
AGREEMENT AND PLAN OF MERGER
The undersigned, the President of U S Jet, Inc., a Delaware
corporation ("U S Jet"), represents and warrants the following as required by
the Agreement and Plan of Merger (the "Plan" or the "Merger") between U S Jet,
its stockholders (the "U S Jet Stockholders") and American Coal Corporation, a
Nevada corporation ("American Coal"):
1. That he is the President of U S Jet and has been authorized
and empowered by its Board of Directors to execute and deliver this
Certificate to American Coal.
2. Based on his personal knowledge, information, belief:
(i) All representations and warranties of U S Jet
contained within the Plan are true and correct;
(ii) U S Jet has complied with all terms and provisions
required of it pursuant to the Plan; and
(iii) There have been no material adverse changes in the
financial position of U S Jet as set forth in its
unaudited balance sheet and income statement for the
period ended June 30, 1998, except as set forth in
Exhibit F to the Plan.
U S JET, INC.
By /s/ Kenneth R. DeBree, President
<PAGE>
EXHIBIT J
CERTIFICATE OF OFFICER PURSUANT TO
AGREEMENT AND PLAN OF MERGER
The undersigned, the President of American Coal Corporation, a
Nevada corporation ("American Coal"), represents and warrants the following as
required by the Agreement and Plan of Merger (the "Plan" or the "Merger")
between American Coal and U S Jet, Inc., a Delaware corporation ("U S Jet"),
and the stockholders of U S Jet (the "U S Jet Stockholders"):
1. That he is the President of American Coal and has been
authorized and empowered by its Board of Directors to execute and deliver this
Certificate to U S Jet and the U S Jet Stockholders.
2. Based on his personal knowledge, information, belief and
opinions of counsel for American Coal regarding the Plan:
(i) All representations and warranties of American Coal
contained within the Plan are true and correct;
(ii) American Coal has complied with all terms and
provisions required of it pursuant to the Plan; and
(iii) There have been no material adverse changes in the
financial position of American Coal as set forth in
its financial statements for the years ended June 30,
1998 and 1997, except as set forth in Exhibit D to the
Plan.
AMERICAN COAL CORPORATION
/s/ Dannette Uyeda, President
<PAGE>
EXHIBIT K
FINDERS' SHARES
American Coal
Post-Split Shares
Nicholas J. Julian 320,401
1969 West North Temple
Salt Lake City, Utah 84116
Justeene Blankenship 300,000
1969 West North Temple
Salt Lake City, Utah 84116
John Michael Coombs, Esq. 75,000
124 South 6th East, #100
Salt Lake City, Utah 84102
S-8 COMPENSATION SHARES TO BE ISSUED PURSUANT
TO A WRITTEN COMPENSATION AGREEMENT
Dannette Uyeda 100,000
1969 West North Temple
Salt Lake City, Utah 84116
Jennifer Ngo 100,000
1969 West North Temple
Salt Lake City, Utah 84116
Justeene Blankenship 75,000
1969 West North Temple
Salt Lake City, Utah 84116
John Michael Coombs 25,000
124 South 6th East, #100
Salt Lake City, Utah 84102
DEDUCTION OF ROUNDING SHARES
Number required and deducted 4,599
TOTAL SHARES: 1,000,000
NOTICE OF DISSENTERS' RIGHTS
TO THE STOCKHOLDERS OF AMERICAN COAL CORPORATION
(a Nevada corporation)
and
U S JET, INC.
(a Delaware corporation)
111 Airport Road
Butte, Montana 59701
INTRODUCTION
Pursuant to an Agreement and Plan of Merger dated August 24, 1998
(the "Plan"), between the American Coal Corporation, a Nevada corporation (the
"Company"); U S Jet, Inc., a Delaware corporation ("U S Jet"); and all of the
stockholders of U S Jet (the "U S Jet Stockholders"), the U S Jet Stockholders
became the controlling stockholders of the Company in a transaction viewed as
a reverse merger. The Company was the surviving corporation under the Plan.
The Plan was treated as a "pooling of interests" for accounting purposes, and
the effective date of the Plan was August 27, 1998, the date when the
Certificate of Merger was filed with the Secretary of State of Nevada.
U S Jet was organized in the State of Delaware on July 18, 1997.
Based in Butte, Montana, U S Jet operates a major regional refrigerated
warehouse and freight terminal, using long haul trucks and cargo jet aircraft
to provide integrated logistical services and move food and other high value
products throughout the world for major commercial shippers, exporters, cargo
forwarders and contract customers.
There were 9,900,000 outstanding voting securities of the Company
owned by persons who had no interest in the Plan not shared by all other
stockholders; 4,969,825 of these shares or approximately 50.2% were voted in
favor of the Plan by written consent pursuant to Section 78.320 of the Nevada
Revised Statutes. There was no relationship between these stockholders and
the U S Jet Stockholders prior to the completion of the Plan.
The source of the consideration used by the U S Jet Stockholders
to acquire their respective interests in the Company was the exchange of
570,000 shares of $0.001 par value common voting stock and 450,000 shares of
$0.001 par value preferred stock for 10,200,000 post-split shares of $0.001
par value common voting stock of the Company, amounting to approximately 90.3%
of the outstanding post-Plan voting securities of the Company. Accordingly,
the basis of the "control" by the U S Jet Stockholders is this stock
ownership, and their present capacities as directors or executive officers of
the Company.
SUMMARY OF PLAN OF MERGER
In summary, pursuant to the Plan, (i) U S Jet merged with and into
the Company, with the Company being the surviving corporation; (ii) the name
of the Company was changed to "U S Jet, Inc."; (iii) the pre-Plan outstanding
voting securities of the Company were reverse split on the basis of 100 for
one (stockholders of the Company will be required to divide the number of
shares of common stock of the Company presently owned by 100 to determine the
number of shares presently owned, which will amount to approximately 1/100th
of one share in the reorganized company for each share presently owned), while
retaining the authorized capital at 300,000,000 shares and the par value at
$0.001 per share, with appropriate adjustments to the stated capital and
capital surplus accounts of the Company; provided, however, that no
stockholder, based upon a per stock certificate of record basis on the closing
of the Plan shall have current holdings reduced to less than 100 shares, and
those stockholders currently holding less than 100 shares will not be affected
by the reverse split; and provided, further, however, that all fractional
shares shall be otherwise rounded up to the nearest whole share; (iv) each
issued, and outstanding share of common stock of U S Jet was exchanged for one
post-split share of common stock of the Company, amounting to approximately
10,200,000 post-split shares in the aggregate (the shares of common stock of
the Company to be received by the U S Jet Stockholders in exchange for their U
S Jet shares are "unregistered" and "restricted" shares, and the completion of
the Plan will result in a new "holding period" for the U S Jet stockholders
for purposes of resale under Rule 144 of the Securities and Exchange
Commission); and (v) an additional 1,000,000 post-split shares (less 4,599
shares to be deducted for rounding regarding the reverse split) are to be
issued to certain consultants of the Company as follows, to-wit: 700,000 to
certain finders and 300,000 pursuant to an S-8 Registration Statement and a
written compensation agreement, for services related to the negotiation and
consummation of the Plan.
Following the completion of the Plan, taking into account the
foregoing, there are or will be approximately 11,299,159 post-split
outstanding voting securities of the Company.
PRINCIPAL STOCKHOLDERS FOLLOWING COMPLETION
OF PLAN OF MERGER
The following table indicates the names, addresses and Company
stockholdings of the U S Jet Stockholders, following the completion of the
Plan, to-wit:
Number of Percent
Name Shares Owned of Class
Price Family Limited Partnership, 4,000,000 35.4%
Paul A. Price, General Partner
25 Burning Tree Lane
Butte, Montana 59701
Kenneth R. DeBree 5,300,000 46.9%
1335 Porphyry
Butte, Montana 59701
Bill Markovich, Jr. 300,000 2.7%
2827 Lexington
Butte, Montana 59701
L. William Hegland 300,000 2.7%
111 Airport Road
Butte, Montana 59701
Leonard W. Burningham, Esq. 200,000 1.7%
455 East 500 South, #205
Salt Lake City, Utah 84111
Johnny C. Chao 50,000 0.4%
7700 E. Hardfort Drive
Scottsdale, Arizona 85255
Jean P. DeBree 50,000 0.4%
5363 Lone Pine Road
Helena, Montana 59601 __________ ______
Total: 10,200,000 90.2%
FORMER AND PRESENT MANAGEMENT, TAKING INTO ACCOUNT
COMPLETION OF THE PLAN OF MERGER
Pursuant to the Plan, the persons who were serving as directors
and executive officers of the Company immediately prior to its completion
resigned, in seriatim, and appointed the persons who were serving as directors
and executive officers of U S Jet immediately prior to its completion, as
follows, respectively, to-wit:
Resigned:
Name Position
Dannette Uyeda President and Director
Jennifer Ngo Secretary/Treasurer and Director
Elected:
Kenneth R. DeBree Chairman, CEO and President
L. William Hegland Director, Executive Vice President, CFO
Director of Safety and Treasurer
Paul A. Price Vice President of Corporate Development,
Secretary and In-House Counsel
Bill Markovich, Jr. Director
Eugene Forsthofel Director and Vice President of Flight Operations
DISSENTERS' RIGHTS
As a result of the completion of the Plan, the stockholders of the
Company are entitled to dissenters' rights under the Nevada Revised Statutes,
which are as follows, to-wit:
92A.300. Definitions.
As used in NRS 92A.300 to 92A.500, inclusive, unless the context
otherwise requires, the words and terms defined in NRS 92A.305 to 92A.335,
inclusive, have the meanings ascribed to them in those sections. (1995, ch.
586, Section 35, p.2086.)
92A.305 "Beneficial stockholder" defined.
"Beneficial stockholder" means a person who is a beneficial owner
of shares held in a voting trust or by a nominee as a stockholder of record.
(1995, ch. 586, Section 36, p. 2087.)
92A.310. "Corporate action" defined.
"Corporate action" means the action of a domestic corporation.
(1995, ch. 586, Section 37, p. 2087.)
92A.315. "Dissenter" defined.
"Dissenter" means a stockholder who is entitled to dissent from a
domestic corporation's action under NRS 92A.380 and who exercises that right
when notified thereof pursuant to Section 92A.410. (1995, ch. 586, Section
38, p. 2087.)
92A.320. "Fair value" defined.
"Fair value," with respect to a dissenter's shares, means the
value of the shares immediately before the effectuation of the corporate
action to which he objects, excluding any appreciation or depreciation in
anticipation of the corporate action unless exclusion would be inequitable.
(1995, ch. 586 Section 39, p. 2087.)
92A.325. "Stockholder" defined.
"Stockholder" means a stockholder of record or a beneficial
stockholder of a domestic corporation. (1995, ch. 586, Section 40, p. 2087.)
92A.330. "Stockholder of record" defined.
"Stockholder of record" means the person in whose name shares are
registered in the records of a domestic corporation or the beneficial owner of
shares to the extent of the rights granted by a nominee's certificate on file
with the domestic corporation. (1995, ch. 586, Section 41, p. 2087.)
92.335. "Subject corporation" defined.
"Subject corporation" means the domestic corporation which is the
issuer of the shares held by a dissenter before the corporate action creating
the dissenter's rights becomes effective or the surviving or acquiring entity
of that issuer after the corporate action becomes effective. (1995, ch. 586,
Section 42, p. 2087.)
92A.340. Computation of interest.
Interest payable pursuant to NRS 92A.300 to 92A.500, inclusive,
must be computed from the effective date of the action until the date of
payment at the average rate currently paid by the entity on its principal bank
loans or, if it has no bank loans, at a rate that is fair and equitable under
all of the circumstances. (1995, ch. 586, Section 43, p. 2087.)
92A.350. Rights of dissenting partner of a domestic limited partnership.
A partnership agreement of a domestic limited partnership or,
unless otherwise provided in the partnership agreement, an agreement of merger
or exchange, may provide that contractual rights with respect to the
partnership interest of a dissenting general or limited partner of a domestic
limited partnership are available for any class or group of partnership
interests in connection with any merger or exchange in which the domestic
limited partnership is a constituent entity. (1995, ch. 586, Section 47, p.
2088.)
92A.360. Rights of dissenting member of domestic limited-liability company.
The articles of organization or operating agreement of a domestic
limited-liability company or, unless otherwise provided in the articles of
organization or operating agreement, an agreement of merger or exchange, may
provide that contractual rights with respect to the interest of a dissenting
member are available in connection with any merger or exchange in which the
domestic limited-liability company is a constituent entity. (1995, ch. 586,
Section 48, p. 2088.)
92A.370. Rights of dissenting member of domestic nonprofit corporation.
1. Except as otherwise provided in subsection 2 and unless
otherwise provided in the articles or bylaws, any member of any constituent
domestic nonprofit corporation who voted against the merger may, without prior
notice, but within 30 days after the effective date of the merger, resign from
membership and is thereby excused from all contractual obligations to the
constituent or surviving corporations which did not occur before his
resignation and is thereby entitled to those rights, if any, which would have
existed if there had been no merger and the membership had been terminated or
the member had been expelled.
2. Unless otherwise provided in its articles of incorporation
or bylaws, no member of a domestic nonprofit corporation, including, but not
limited to, a cooperative corporation, which supplies services described in
Chapter 704 of NRS to its members only, and no person who is a member of a
domestic nonprofit corporation as a condition of or by reason of the ownership
of an interest in real property, may resign and dissent pursuant to subsection
1. (1995, ch. 586, Section 46, p. 2088.)
92A.380. Right of stockholder to dissent from certain corporate actions and
to obtain payment for shares.
1. Except as otherwise provided in NRS 92A.370 to 92A.390, a
stockholder is entitled to dissent from, and obtain payment of the fair value
of his shares in the event of any of the following corporate actions;
(a) Consummation of a plan of merger to which the domestic
corporation is a party:
(1) If approval by the stockholders is required for the
merger by NRS 92A.120 to 92A.160, inclusive, or the
articles of incorporation and he is entitled to vote
on the merger; or
(2) If the domestic corporation is a subsidiary and is
merged with its parent under NRS 92A.180.
(b) Consummation of a plan of exchange to which the domestic
corporation is a party as the corporation whose subject
owner's interests will be acquired, if he is entitled to
vote on the plan.
(c) Any corporate action taken pursuant to a vote of the
stockholders to the event that the articles of
incorporation, bylaws or a resolution of the board of
directors provides that voting or nonvoting stockholders are
entitled to dissent and obtain payment for their shares.
2. A stockholder who is entitled to dissent and obtain payment
under NRS 92A.300 to 92A.500, inclusive, may not challenge the corporate
action creating his entitlement unless the action is unlawful or fraudulent
with respect to him or the domestic corporation. (1995, ch. 586, Section 44,
p. 2087.)
92A.390. Limitations on right of dissent: Stockholders of certain classes
or series; action of stockholders not required for plan of merger.
1. There is no right of dissent with respect to a plan of
merger or exchange in favor of stockholders of any class or series which, at
the record date fixed to determine the stockholders entitled to receive notice
of and to vote at the meeting at which the plan of merger or exchange is to be
acted on, were either listed on a national securities exchange, included in
the national market system by the National Association of Securities Dealers,
Inc., or held by at least 2,000 stockholders of record, unless:
(a) The articles of incorporation of the corporation issuing the
shares provide otherwise; or
(b) The holders of the class or series are required under the
plan of merger or exchange to accept for the shares anything
except:
(1) Cash, owner's interests or owner's interests and cash
in lieu of fractional owner's interests of:
(I) The surviving or acquiring entity; or
(II) Any other entity which, at the effective date of
the plan of merger or exchange, were either
listed on a national securities exchange,
included in the national market system by the
National Association of Securities Dealers,
Inc., or held of record by at least 2,000
holders of owner's interests of record; or
(2) A combination of cash and owner's interests of the
kind described in sub-subparagraphs (I) and (II) of
subparagraph (1) of paragraph (b).
2. There is no right of dissent for any holders of stock of the
surviving domestic corporation if the plan of merger does not require action
of the stockholders of the surviving domestic corporation under NRS 92A.130.
(1995, ch. 586, Section 45, p. 2088.)
92A.400. Limitations on right of dissent: Assertion as to portions only to
shares registered to stockholder; assertion by beneficial
stockholder.
1. A stockholder of record may assert dissenter's rights as to
fewer than all of the shares registered in his name only if he dissents with
respect to all shares beneficially owned by any one person and notifies the
subject corporation in writing of the name and address of each person on whose
behalf he asserts dissenter's rights. The rights of a partial dissenter under
this section are determined as if the shares as to which he dissents and his
other shares were registered in the names of different stockholders.
2. A beneficial stockholder may assert dissenter's rights as to
shares held on his behalf only if:
(a) He submits to the subject corporation the written consent of
the stockholder of record to the dissent not later than the
time the beneficial stockholder asserts dissenter's rights;
and
(b) He does so with respect to all shares of which he is the
beneficial stockholder or over which he has power to direct
the vote. (1995, ch. 586, Section 49, p. 2089.
92A.410. Notification of stockholders regarding right of dissent.
1. If a proposed corporate action creating dissenters' rights
is submitted to a vote at a stockholders' meeting, the notice of the meeting
must state that stockholders are or may be entitled to assert dissenters'
rights under NRS 92A.300 to 92A.500, inclusive, and be accompanied by a copy
of those sections.
2. If the corporate action creating dissenters' rights is taken
without a vote of the stockholders, the domestic corporation shall notify in
writing all stockholders entitled to assert dissenters' rights that the action
was taken and send them the dissenter's notice described in NRS 92A.430.
(1995, ch. 586, Section 50, p. 2089.)
92A.420. Prerequisites to demand for payment for shares.
1. If a proposed corporate action creating dissenters' rights
is submitted to a vote at a stockholders' meeting, a stockholder who wishes to
assert dissenter's rights:
(a) Must deliver to the subject corporation, before the vote is
taken, written notice of his intent to demand payment for
his shares if the proposed action is effectuated; and
(b) Must not vote his shares in favor of the proposed action.
2. A stockholder who does not satisfy the requirements of
subsection 1 is not entitled to payment for his shares under this chapter.
(1995, ch. 586, Section 51, p. 2089.)
92A.430. Dissenter's notice: Delivery to stockholders entitled to assert
rights; contents.
1. If a proposed corporate action creating dissenters' rights
is authorized at a stockholders' meeting, the subject corporation shall
deliver a written dissenter's notice to all stockholders who satisfied the
requirements to assert those rights.
2. The dissenter's notice must be sent no later than 10 days
after the effectuation of the corporate action, and must:
(a) State where the demand for payment must be sent and where
and when certificates, if any, for shares must be deposited;
(b) Inform the holders of shares not represented by certificates
to what extent the transfer of the shares will be restricted
after the demand for payment is received;
(c) Supply a form for demanding payment that includes the date
of the first announcement to the news media or to the
stockholders of the terms of the proposed action and
requires that the person asserting dissenter's rights
certify whether or not he acquired beneficial ownership of
the shares before that date;
(d) Set a date by which the subject corporation must receive the
demand for payment, which may not be less than 30 nor more
than 60 days after the date the notice is delivered; and
(e) Be accompanied by a copy of NRS 92A.300 to 92A.500,
inclusive. (1995, ch. 586, Section 52, p. 2089.)
92A.440 Demand for payment and deposit of certificates; retention of
rights of stockholder.
1. A stockholder to whom a dissenter's notice is sent must:
(a) Demand payment;
(b) Certify whether he acquired beneficial ownership of the
shares before the date required to be set forth in the
dissenter's notice for this certification; and
(c) Deposit his certificates, if any, in accordance with the
terms of the notice.
2. The stockholder who demands payment and deposits his
certificate, if any, retains all other rights of a stockholder until those
rights are canceled or modified by the taking of the proposed corporate
action.
3. The stockholder who does not demand payment or deposit his
certificates where required, each by the date set forth in the dissenter's
notice, is not entitled to payment for his shares under this chapter. (9195,
ch. 586, Section 53, p. 2090.)
92A.450. Uncertificated shares: Authority to restrict transfer after
demand for payment; retention of rights of stockholder.
1. The subject corporation may restrict the transfer of shares
not represented by a certificate from the date the demand for their payment is
received.
2. The person for whom dissenter's rights are asserted as to
shares not represented by a certificate retains all other rights of a
stockholder until those rights are canceled or modified by the taking of the
proposed corporate action. (1995, ch. 586, Section 54, p. 2090.)
92A.460. Payment for shares: General requirements.
1. Except as otherwise provided in NRS 92A.470, within 30 days
after receipt of a demand for payment, the subject corporation shall pay each
dissenter who complied with NRS 92A.440 the amount the subject corporation
estimates to be the fair value of his shares, plus accrued interest. The
obligation of the subject corporation under this subsection may be enforced by
the district court:
(a) Of the county where the corporation's registered office is
located; or
(b) At the election of any dissenter residing or having its
registered office in this state, or the county where the
dissenter resides or has its registered office. The court
shall dispose of the complaint promptly.
2. The payment must be accompanied by:
(a) The subject corporation's balance sheet as of the end of a
fiscal year ending not more than 16 months before the date
of payment, a statement of income for that year, a statement
of changes in the stockholders' equity for that year and the
latest available interim financial statements, if any;
(b) A statement of the subject corporation's estimate of the
fair value of the shares;
(c) An explanation of how the interest was calculated;
(d) A statement of the dissenter's rights to demand payment
under NRS 92A.480; and
(e) A copy of NRS 92A.300 to 92A.500, inclusive. (1995, ch.
586, Section 55, p. 2090.)
92A.470. Payment for shares: Shares acquired on or after date of
dissenter's notice.
1. A subject corporation may elect to withhold payment from a
dissenter unless he was the beneficial owner of the shares before the date set
forth in the dissenter's notice as the date of the first announcement to the
news media or to the stockholders of the terms of the proposed action.
2. To the extent the subject corporation elects to withhold
payment, after taking the proposed action, it shall estimate the fair value of
the shares, plus accrued interest, and shall offer to pay this amount to each
dissenter who agrees to accept it in full satisfaction of his demand. The
subject corporation shall send with its offer a statement of its estimate of
the fair value of the shares, an explanation of how the interest was
calculated and a statement of the dissenters' right to demand payment pursuant
to NRS 92A.480. (1995, ch. 586, Section 56, p. 2091.)
92A.480 Dissenter's estimate of fair value: Notification of subject
corporation; demand for payment of estimate.
1. A dissenter may notify the subject corporation in writing of
his own estimate of the fair value of his shares and the amount of interest
due, and demand payment of his estimate, less any payment pursuant to NRS
92A.460, or reject the offer pursuant to NRS 92A.470 and demand payment of the
fair value of his shares and interest due, if he believes that the amount paid
pursuant to NRS 92A.460 or offered pursuant to NRS 92A.470 is less than the
fair value of his shares or that the interest due is incorrectly calculated.
2. A dissenter waives his right to demand payment pursuant to
this section unless he notifies the subject corporation of his demand in
writing within 30 days after the subject corporation made or offered payment
for his shares. (1995, ch. 586, Section 57, p. 2091.)
92A.490 Legal proceeding to determine fair value: Duties of subject
corporation; powers of court; rights of dissenter.
1. If a demand for payment remains unsettled, the subject
corporation shall commence a proceeding within 60 days after receiving the
demand and petition the court to determine the fair value of the shares and
accrued interest. If the subject corporation does not commence the proceeding
within the 60-day period, it shall pay each dissenter whose demand remains
unsettled the amount demanded.
2. A subject corporation shall commence the proceeding in the
district court of the county where its registered office is located. If the
subject corporation is a foreign entity without a resident agent in the state,
it shall commence the proceeding in the county where the registered office of
the domestic corporation merged with or whose shares were acquired by the
foreign entity was located.
3. The subject corporation shall make all dissenters, whether
or not residents of Nevada, whose demands remain unsettled, parties to the
proceeding as in an action against their shares. All parties must be served
with a copy of the petition. Nonresidents may be served by registered or
certified mail or by publication as provided by law.
4. The jurisdiction of the court in which the proceeding is
commenced under subsection 2 is plenary and exclusive. The court may appoint
one or more persons as appraisers to receive evidence and recommend a decision
on the question of fair value. The appraisers have the powers described in
the order appointing them, or any amendment thereto. The dissenters are
entitled to the same discovery rights as parties in other civil proceedings.
5. Each dissenter who is made a party to the proceeding is
entitled to a judgment:
(a) For the amount, if any, by which the court finds the fair
value of his shares, plus interest, exceeds the amount paid
by the subject corporation; or
(b) For the fair value, plus accrued interest, of his after-
acquired shares for which the subject corporation elected to
withhold payment pursuant to NRS 92A.470. (1995, ch. 586,
Section 58, p. 2091.)
92A. 500 Legal proceeding to determine fair value: Assessment of costs and
fees.
1. The court in a proceeding to determine fair value shall
determine all of the costs of the proceeding, including the reasonable
compensation and expenses of any appraisers appointed by the court. The court
shall assess the costs against the subject corporation, except that the court
may assess costs against all or some of the dissenters, in amounts the court
finds equitable, to the extent the court finds the dissenters acted
arbitrarily, vexatiously or not in good faith in demanding payment.
2. The court may also assess the fees and expenses of the
counsel and experts for the respective parties, in amounts the court finds
equitable:
(a) Against the subject corporation and in favor of all
dissenters, if the court finds the subject corporation did
not substantially comply with the requirements of NRS
92A.300 to 92A.500, inclusive; or
(b) Against either the subject corporation or a dissenter in
favor of any other party, if the court finds that the party
against whom the fees and expenses are assessed acted
arbitrarily, vexatiously or not in good faith with respect
to the rights provided by NRS 92A.300 to 92A.500, inclusive.
3. If the court finds that the services of counsel for any
dissenter were of substantial benefit to other dissenters similarly situated,
and that the fees for those services should not be assessed against the
subject corporation, the court may award to those counsel reasonable fees to
be paid out of the amounts awarded to the dissenters who were benefited.
4. In a proceeding commenced pursuant to NRS 92A.460, the court
may assess the costs against the subject corporation, except that the court
may assess costs against all or some of the dissenters who are parties to the
proceeding, in amounts the court finds equitable, to the extent the court
finds that such parties did not act in good faith in instituting the
proceeding.
5. This section does not preclude any party in a proceeding
commenced pursuant to NRS 92A.460 or 92A.490 from applying the provisions of
N.R.C.P. 68 or NRS 17.115. (1995, ch. 586, Section 59, p. 2092.)
(All references to gender in the quoted provisions of the Nevada Revised
Statutes include men, women and entities.)
A Form of Dissenters' Rights Election to exercise such rights,
which accompanies this Notice of Dissenters' Rights, requires the certificated
or uncertificated shares of any dissenter to be forwarded for deposit with the
Company on the election of any such rights, and the shares of common stock
represented thereby shall be subject to restrictions on transfer until
settlement and payment of the fair value thereof, by offer, negotiation or
court action.
ADDITIONAL INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended, and in accordance therewith,
files reports and other information with the Securities and Exchange
Commission. Such reports and other information can be inspected and copied at
the public reference facilities of the Securities and Exchange Commission at
Room 1024, 450 Fifth Street, N.W., Washington, D. C. 20549; and copies of such
materials can be obtained from the public reference facilities which are
located at 450 Fifth Street, N.W., Washington, D. C. 20549, at prescribed
rates. This information may also be accessed through the EDGAR system on the
internet at www.sec.gov. Access is made by clicking on the Edgar Archives and
entering the Central Index Key No. 0000799194 in the box.
Regarding the financial position of the Company prior to the
completion of the Plan, specifically see the 10-KSB Annual Report of the
Company for the year ended December 31, 1998, and its 10-QSB Quarterly Reports
for the past twelve months.
The 8-K Current Report dated August 24, 1998, which takes into
account the completion of the Plan with U S Jet should also be available via
the Internet, through EDGAR, using the Central Index Key number referenced
above.
The Company will also provide, on written request, to any
dissenter, a copy of the most recent financial statements of the Company and U
S Jet, and the combined pro forma balance sheet, taking into account the
completion of the Plan, without cost. These are also contained in the 8-K
Current Report referred to in the preceding paragraph.
TRANSFER OF SECURITIES
Stockholders of the Company who desire to exchange their stock
certificates for new stock certificates bearing the new name of the Company
and reflecting the reverse split of 100 for one, should forward their stock
certificates to Standard Registrar & Transfer Co., 12528 South 1840 East,
Draper, Utah 84020, together with a check in the amount of $20 for a new stock
certificate; or you may maintain your present stock certificate until you have
an intention to sell it, at which time your broker-dealer will effect the
transfer for you. The shares of common stock represented by any stock
certificate registered in the name "American Coal Corporation" shall be
divided by 100, for example, to-wit: 10,000 shares shall equal 100 post-split
shares; however, no stockholder, based upon a per stock certificate of record
basis, shall have current holdings reduced to less than 100 shares, and those
stockholders currently holding less than 100 shares will not be affected by
the reverse split.
MARKET INFORMATION
Prior to the completion of the Plan, the Company's shares were
quoted on the OTC Bulletin Board under the Symbol "AICL"; however, the shares
traded on a limited and sporadic basis and no broker-dealer maintained a
market in the shares of common stock on a regular basis. During the Company's
fiscal years ended June 30, 1998 and 1997, there has not been a firm quotation
for the Company's shares and immediately prior to the completion of the Plan,
the Company's shares had a bid price of $0.01 per share; taking into account
the reverse split, this would amount to a post-split bid price of
approximately $1.00 per share. Any quotation currently provided by a broker-
dealer is not a firm quotation and does not represent any actual transactions.
With the completion of the Plan, the Company has a new symbol, "USJT," and
management anticipates, based upon recent inquiries, that a viable market for
the Company's shares of common stock may exist in the future. In considering
whether to dissent, stockholders of the Company and U S Jet may wish to
consult their stock brokerage representative with respect to effect any
potential market may have on their election to dissent.
September 14, 1998 THE BOARD OF DIRECTORS
<PAGE>
FORM OF DISSENTERS' RIGHTS ELECTION
(Must be completed and post-marked prior to October 9, 1998)
U S Jet, Inc.
111 Airport Road
Butte, Montana 59701
Re: Demand for Payment for Shares of American Coal
Corporation, a Nevada corporation (the "Company")
Gentlemen:
Pursuant to Sections 92A.300 to 92A.500, inclusive, of the Nevada
Revised Statutes and the Notice of Dissenter's Rights of the Company, dated
September 1, 1998, the undersigned hereby demands payment for his/her/its
shares of the Company.
The date of the first announcement to the news media or to the
stockholders of the Company of the terms of the proposed merger of U S Jet,
Inc., a Delaware corporation, and the Company was the News Release dated
August 24, 1998.
The undersigned certifies that he/she/it did _____ did not _____
acquire beneficial ownership of his/her/its shares of the Company before
August 24, 1998. [Check one]
The undersigned hereby delivers stock certificate(s) No(s).
______________________, representing _____________ shares of the Company's
common stock, as required by the Nevada Revised Statutes.
Dated: _______________ _______________________________________
(Signature)
________________________________________
(Print Name)
________________________________________
________________________________________
(Address)
CERTIFICATE OF AMENDMENT
TO THE ARTICLES OF INCORPORATION OF
AMERICAN COAL CORPORATION
We, the undersigned, Dannette Uyeda, President, and Jennifer Ngo,
Secretary, of American Coal Corporation, a Nevada corporation (the
"Corporation"), do hereby certify:
I
Pursuant to Section 78.390 of the Nevada Revised Statutes, the
Articles of Incorporation of the Corporation shall be amended as indicated
below.
II
The following amendment was adopted by Consent of the Board of
Directors pursuant to Section 78.315 of the Nevada Revised Statutes and by
Consent of the Majority Stockholders pursuant to Section 78.320 of the Nevada
Revised Statutes.
III
Pursuant to resolutions adopted by the Board of Directors and the
Majority Stockholders as set forth in Paragraph II above, the 9,900,000 common
outstanding shares of the Corporation were reverse split on a basis of 100 for
one, effective on the filing of this Amendment with the Secretary of State of
the State of Nevada, while retaining the authorized common shares at
300,000,000 and the par value at one mill ($0.001) per share, with appropriate
adjustments being made in the additional paid in capital and stated capital
accounts of the Corporation; provided, however, that no stockholder, based
upon a per stock certificate of record basis on the closing of the Plan
outlined below, shall have current holdings reduced to less than 100 shares,
and those stockholders currently holding less than 100 shares will not be
affected by the reverse split; and provided, further, however, that all
fractional shares shall be otherwise rounded up to the nearest whole share.
IV
The number of common shares entitled to vote on the amendment was
9,900,000.
V
The number of common shares voted in favor of the amendment was
4,969,825 with none opposing and none abstaining.
/s/ Dannette Uyeda, President
/s/ Jennifer Ngo, Secretary
STATE OF UTAH )
) ss
COUNTY OF SALT LAKE )
On the 24th day of August, 1998, personally appeared before me, a
Notary Public, Dannette Uyeda, who acknowledged that she is the President of
American Coal Corporation, and that she is authorized to and did execute the
above instrument.
/s/ Sheryl Ross
NOTARY PUBLIC
STATE OF UTAH )
) ss
COUNTY OF SALT LAKE )
On the 24th day of August, 1998, personally appeared before me, a
Notary Public, Jennifer Ngo, who acknowledged that she is the Secretary of
American Coal Corporation and that she is authorized to and did execute the
above instrument.
/s/ Sheryl Ross
NOTARY PUBLIC
Andersen, Andersen & Strong
Certified Public Accountants
(Letterhead)
September 15, 1998
Securities and Exchange Commission
450 Fifth Street, NW
Washington, DC 20549
Re: U S Jet, Inc., a Nevada corporation, formerly known as "American
Coal Corporation" (the "Company")
Ladies and Gentlemen:
We were previously the independent accountants for the Company and
on August 18, 1998, we reported on the financial statements of the Company for
the years ended June 30 1998 and 1997. On August 25, 1998, we were replaced
as the independent accountants of the Company following a merger with U S Jet,
Inc., a Delaware corporation, and the subsequent name change of the Company to
U S Jet, Inc.
We have read the Company's statements included under Item 4 of its
Form 8-K dated August 24, 1998, and we agree with such statements.
Very truly yours,
/s/ L.R. Andersen
Andersen, Andersen & Strong
Resumes
Kenneth R. DeBree Date of Birth: 9-4-42
1355 W. Porphyry Weight: 225 lbs.
Butte, MT 59701 Height: 5'10"
OBJECTIVE: Airline Management
EXPERIENCE: Commercial Pilot, Police Officer, Corporate Management
CERTIFICATES HELD:
Pilot Cert: Commercial, Multi-Engine, Single Engine, Rotorcraft
Helicopter, Instrument
Power Plant Mechanic
FCC Second Class
POST Police Officer, Police Pilot
EDUCATION:
1. High School - Helena Senior High - Helena, MT
2. College Northwestern University - Chicago, IL
3. College Carroll College - Helena, MT
4. College Montana Law Enforcement Academy - Bozeman, MT
5. College Montana State University - Bozeman, MT
6. Law Enforcement
Special classes and courses.
a. Bomb Identification and Handling
b. Narcotics Investigation
c. Security for Public Events
d. Advanced Criminal Investigations
7. Flight School Airplane and Helicopter Kalispell, MT
8. Flight Safety Cheyenne Lakeland, FL
9. Flight Training Casa 212 Denver, CO
10. Flight Training Boeing 707, DC-6 Miami, FL
11. Airline Instructor Training Denver, CO
WORK HISTORY:
1. May 1960 - July 1970 U S Navy
Weapons System Officer. Started as an Electronics Tech
and advanced to the point of System Officer in charge
of approximately sixty men.
2. August 1970 - July 1974 Wolff Aviation Helena, MT
Part time - aircraft maintenance. Maintained general aviation aircraft.
3. June 1974 - May 1978 K & F Aviation Helena, MT
Part time - Pilot & Salesman. Ran a small company that purchased and
then resold fresh sea food.
4. August 1970 - February 1980 Lewis & Clark Sheriff Dept., Helena, MT
Patrol Officer, Police Pilot, Narcotics & Criminal Investigator. I
started as a street officer and worked my way to being a criminal
investigator. I earned the award "Police Office of the
Year" in 1974 for an extensive undercover investigation that resulted in
the arrest and conviction of a number of attorneys.
5. June 1980 - November 1980 Continental Divide Helicopters Erie, CO
Pilot Mechanic. Flew and maintained Hughes and Bell Helicopters.
6. November 1980 - August 1982 Orion, Inc. Billings, MT
Vice President Operations & Pilot. I completely certificated this
company under the rules and regulations of FAA Part 12 1.
7. August 1982 - December 1983 U S Jet Denver, CO
Assistant Director of Operations, Director of Marketing, Pilot, &
Airline Security Officer. Beside managing an outlying station, I was the
Assistant Operations Officer and Airline Security Officer. I was charged
with the overall security of the company, as well as, in charge of the
transportation of state and federal prisoners.
8. March 1984 - September 1985 Skyknight Helicopters Salt Lake City
Director of Operations & Pilot. I was charged with the over
responsibility of the operations of the company. The company was a
helicopter company that had numerous helicopters on field contracts. I
assigned and supervised a staff of approximately thirty pilots
and mechanics, as well as, was sole fixed wing pilot who flew the
company jet for corporate and public charters.
9. September 1985 - November 1988 Falcon Air Denver, CO
Chief Operations Officer, Pilot, & Check Airman. I was charged with the
responsibility for the everyday operation of this company. I assigned
and supervised approximately thirty employees, as well as, bid contracts
and arranged the start up of these contracts. I certificated
this company under the rules of Part 135 and held the positions of
Director of Operations, Chief Pilot, Check Airman, and Security Officer.
10. January 1990 until Present - U S Jet, Inc. Butte, MT
Corporate Administration, Company President, Pilot, & Sales. I was
assigned the job of Company President and charged to certificate this
company under the rules and regulations of FAA - DOT Part 12 1.
EXPERIENCE SUMMARY:
1. Aviation Management Twelve years
2. Charter Pilot Twenty years
3. Aviation Marketing Ten years
4. Check Airman Two years
5. Police Pilot Ten years
6. Investigations Twenty years
7. Company Training Officer Three years
8. Total Time 15000+ hours
Turbine Time 5900+ hours
Multi-engine 12800+ hours
Instrument 2500+ hours
9. Low Level Flight 3000 hours
10. Airline Pilot Instruction 2000+ hours
11. Airline Check Airman 2 years
<PAGE>
L. William Hegland
208 Penry Square Folsom, CA 95630
Date of Birth: 2-13-31
Weight: 190 lbs.
Height: 6'1"
Health: Excellent, Class II FAA Medical
PROFESSIONAL EXPERIENCE:
1. October 1989 to 1997: President and General Manager of The Financial
Company, Sacramento, California
As General Manager, responsible for all aspects
of the business including underwriting sourcing
supervision and accounting. As Trustee,
responsible for fiduciary, legal, and ethical
handling of accounts and business operations.
2. January 1986 to October 1989: President and consultant of Pacific
Management Consultants, Sacramento,
California
As a consultant, responsible for financial and
strategic aspect of client projects. Worked with
others to develop long range planning data in
the areas of finance, logistics, sales, and
facilities.
MILITARY EXPERIENCE:
United States Air Force. Active August 1952 to April 1978. Active Reserves
April 1978 to March 1991.
Rank Major General
Total Flying Time 7,500 hours
1. July 1983 to November 1990: Mobilization Assistant to the Commander,
Travis AFB, California
2. April 1980 to July 1983: Mobilization Assistant to the Commander.
Sacramento Air Logistics Center. McClellan
AFB, California
3. October 1978 to April 1980: Vice Commander, 4' Air Force. McClellan AFB,
California
EDUCATION:
California State University, Sacramento, California Master of Science,
Business Administration, Minor Finance
California State University, Sacramento, California
Bachelor of Arts, Speech - English 1957
AFFILIATIONS:
Airlift Association
Air Force Association
Reserve Officers Association
Sacramento Metropolitan Chamber of Commerce
International Brotherhood of the Knights of the Vine.
Bill Markovich, Jr. Mr. Markovich is owner and President of
Markovich Construction and Real Estate, Inc., a major commercial real estate
construction, development and services company with a forty year history in
the Southwestern Montana area.
Johnny Chao. Mr. Chao is owner and President of Trans-Pacific
Aerospace, Inc., Scottsdale, Arizona, a consulting firm that since 1989 has
provided professional management and technical services to major Asian air
carriers and freight forwarders.
