<PAGE>
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 [FEE REQUIRED]
For the Nine Months Ended September 30, 1999
Commission File Number: 33-16417-LA
U. S. TRUCKING, INC.
--------------------------------------------------
(Exact Name of Issuer as Specified in its Charter)
COLORADO 68-0133692
- ------------------------------- ---------------------------------------
(State or Other Jurisdiction of (I.R.S. Employer Identification Number)
Incorporation or Organization)
3125 Ashley Phosphate Road, Suite 128, North Charleston, S.C. 29418
-------------------------------------------------------------------
(Address of Principal Executive Offices)
(843) 767-9197
----------------------------------------------------
(Registrant's Telephone Number, Including Area Code)
Check whether the issuer (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
YES [ X ] NO [ ]
There were 8,058,883 shares of the Registrant's common stock outstanding as of
September 30, 1999.
<PAGE>
U. S. TRUCKING, INC.
FORM 10-QSB
INDEX
Page Number
PART I: FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements:
Consolidated Balance Sheets (Unaudited) -
September 30, 1999 and December 31, 1998 3-4
Consolidated Statement of Income (Unaudited) -
Nine Months Ended September 30, 1999 and 1998 5
Consolidated Statement of Income (Unaudited) -
Three Months Ended September 30, 1999 and 1998 6
Consolidated Statements of Cash Flows (Unaudited) -
Nine Months Ended September 30, 1999 and 1998 7-8
Notes to Condensed Consolidated Financial Statements 9-13
Item 2. Management's Discussion and Analysis or
Plan of Operation 14-21
PART II: OTHER INFORMATION
Item 1. Legal Proceedings 22
Item 2. Changes in Securities 22
Item 3. Defaults Upon Senior Securities 22
Item 4. Submission of Matters to a Vote of Security
Holders 22
Item 5. Other Information 22
Item 6. Exhibits and Reports on Form 8-K 23
SIGNATURES 23
2
<PAGE>
U.S. TRUCKING, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
September 30, 1999 December 31, 1998
(Unaudited) (Audited)
Assets
Current Assets
Cash In Bank $ 1,556,338 $ 22,976
Trade Accounts Receivable - net 8,975,002 3,447,570
Accounts Receivable - Other 1,299,019 141,673
Parts and Supply Inventory 296,900 257,030
Prepaid Expenses and Other 610,931 162,036
----------- -----------
Total Current Assets 12,738,190 4,031,285
Transportation & Other Equipment 7,945,768 9,718,805
at cost - Less accumulated
depreciation and amortization
Other Assets
Restricted Cash - Factor - -
Restricted Cash - Owner Operators 2,442 2,320
Restricted Cash - Letters of Credit 241,790 10,000
Restricted Cash - Captive Insurance 253,196 -
Due from Related Party 100,000 100,000
Due from Captive Insurer 540,299 355,321
Notes Receivable 664,404 -
Security Deposits 152,192 12,575
Intangible Assets - net of accumulated
amortization 5,007,237 2,082,055
----------- -----------
Total Other Assets 6,961,560 2,562,271
Total Assets $27,645,518 $16,312,361
=========== ===========
Liabilities and Stockholders' Equity
Current Liabilities
Accounts Payable - Trade $ 1,332,958 $ 1,443,415
Revolving Credit Line 4,830,053 1,795,888
Factor Payable 1,848,127 -
Accruals & Other Current Liabilities 1,314,682 669,957
Current Portion - Long Term Debt 2,346,897 2,034,756
----------- -----------
Total Current Liabilities 11,672,717 5,944,016
----------- -----------
Other Liabilities
Owner Operator Escrow 138,256 55,874
Convertible Debentures 1,150,000 -
Discount on Convertible Debentures (110,000) -
Long-Term Notes Payable - net of
current portion 3,933,072 5,224,092
----------- -----------
Total Other Liabilities 5,111,328 5,279,966
----------- -----------
Total Liabilities 16,784,045 11,223,982
----------- -----------
3
<PAGE>
U.S. TRUCKING, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
(Continued)
September 30, 1999 December 31, 1998
(Unaudited) (Audited)
Stockholders' Equity
Preferred Stock (no par value - 2,950,762 -
20,000,000 shares authorized,
990,000 Series A issued and outstand-
ing; 2,000 Series B issued and out-
standing; 50,000 Series C issued and
outstanding; and 950 Series D issued
and outstanding
Common Stock (no par value - 4,818,238 2,796,000
75,000,000 shares authorized, 8,058,883
issued and outstanding on September 30,
1999, and 16,074,591 on December 31,
1998)
Additional paid-in Capital 3,938,180 3,821,812
Accumulated Deficit (725,707) (1,409,433)
Subscription Receivable (120,000) (120,000)
----------- -----------
Total Stockholders' Equity 10,861,473 5,088,379
----------- -----------
Total Liabilities & Stockholders'
Equity $27,645,518 $16,312,361
=========== ===========
4
<PAGE>
U.S. TRUCKING, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS AND ACCUMULATED DEFICIT
<TABLE>
<CAPTION>
For the Nine Months Ended For the Nine Months Ended
September 30, 1999 September 30, 1998
(Unaudited) (Unaudited)
<S> <C> <C> <C> <S>
Net Revenues $29,828,018 $15,827,179
Operating Expenses
Purchased Transportation & Rentals 12,589,165 42.2% 5,551,323 35.1%
Salaries, Wages & Benefits 6,400,761 21.5% 4,004,267 25.3%
Fuel 2,405,503 8.1% 1,562,002 9.9%
Operating Supplies & Maintenance 1,102,553 3.7% 859,398 5.4%
Insurance & Claims 881,603 3.0% 417,072 2.6%
Misc. Operating Expenses 577,969 1.9% 417,651 2.6%
Taxes & Licenses 416,033 1.4% 328,037 2.1%
Insurance Captive Expense 815,158 2.7% - 0.0%
Occupancy Costs 262,117 0.9% 201,657 1.3%
Depreciation and Amortization 1,731,921 5.8% 1,194,541 7.5%
General Administrative Expenses 1,810,006 6.1% 622,071 3.9%
----------- ------ ----------- ------
Total Operating Expenses 28,992,788 97.2% 15,158,019 95.8%
Operating Income 835,230 2.8% 669,160 4.2%
Interest Expense (596,048) -2.0% (513,460) -3.2%
Gain on Sale of Equipment 404,954 1.4% - 0.0%
Interest Income 13,691 0.0% 1,748 0.0%
Other Income 25,899 0.1% 52,511 0.3%
----------- ------ ----------- ------
Net Income Before Taxes 683,726 2.3% 209,959 1.3%
Provision for Income Taxes 266,653 0.9% 77,685 0.5%
Tax Benefit of Net Operating
Loss Carryforward (266,653) -0.9% (77,685) -0.5%
----------- ------ ----------- ------
Net Income 683,726 2.3% 209,960 1.3%
Accumulated Deficit - beginning (1,409,434) (1,531,200)
----------- -----------
Accumulated Deficit - ending (725,708) (1,321,240)
=========== ===========
Basic Earnings per Share 0.09 0.01
Diluted Earnings per Share 0.04 0.01
Average Number of Shares 7,876,381 15,381,256
Outstanding
</TABLE>
5
<PAGE>
U.S. TRUCKING, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS AND ACCUMULATED DEFICIT
<TABLE>
<CAPTION>
For the Three Months Ended For the Three Months Ended
September 30, 1999 September 30, 1998
(Unaudited) (Unaudited)
<S> <C> <C> <C> <S>
Net Revenues $12,003,849 $ 5,108,214
Operating Expenses
Purchased Transportation & Rentals 5,501,283 45.8% 1,883,657 36.9%
Salaries, Wages & Benefits 2,262,888 18.9% 1,337,344 26.2%
Fuel 948,179 7.9% 449,388 8.8%
Operating Supplies & Maintenance 477,045 4.0% 237,969 4.7%
Insurance & Claims 412,466 3.4% 76,138 1.5%
Misc. Operating Expenses 277,138 2.3% 123,964 2.4%
Taxes & Licenses 181,020 1.5% 124,475 2.4%
Insurance Captive Expense 232,355 1.9% - 0.0%
Occupancy Costs 90,085 0.8% 76,349 1.5%
Depreciation and Amortization 585,204 4.9% 380,721 7.5%
General Administrative Expenses 740,835 6.2% 210,506 4.1%
----------- ------ ----------- ------
Total Operating Expenses 11,708,497 97.5% 4,900,511 95.9%
Operating Income 295,352 2.5% 207,703 4.1%
Interest Expense (217,576) -1.8% (198,384) -3.9%
Gain on Sale of Equipment 280,840 2.3% - 0.0%
Interest Income 11,266 0.1% 549 0.0%
Other Income - 0.0% 7,270 0.1%
----------- ------ ----------- ------
Net Income Before Taxes 369,882 3.1% 17,138 0.3%
Provision for Income Taxes 144,254 1.2% 5,826 0.1%
Tax Benefit of Net Operating
Loss Carryforward (144,254) -1.2% (5,826) -0.1%
----------- ------ ----------- ------
Net Income 369,882 3.1% 17,138 0.3%
Accumulated Deficit - beginning (1,095,590) (1,304,103)
----------- -----------
Accumulated Deficit - ending (725,708) (1,321,241)
=========== ===========
Basic Earnings per Share 0.05 -
Diluted Earnings per Share 0.02 -
Average Number of Shares 7,149,404 16,082,154
Outstanding
</TABLE>
6
<PAGE>
U.S. TRUCKING, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
For the Nine For the Nine
Months Ended Months Ended
September 30, 1999 September 30, 1998
(Unaudited) (Unaudited)
Cash Flows from Operating Activities
Net Income $ 683,726 $ 209,960
Adjustments to Reconcile Net Income
to Net Cash Provided by (Used in)
Operating Activities
Depreciation & Amortization 1,731,921 1,186,542
Expense related to stock-based - 15,000
compensation plan
Gain on Sale of Equipment (404,954) -
(Increase) Decrease - Assets
Restricted Cash (485,108) (314,332)
Accounts Receivable (4,483,078) (326,986)
Notes Receivable (664,404) -
Parts & Supply Inventory (39,870) (15,689)
Prepaid Expenses & Other Current
Assets (448,895) (84,523)
Increase (Decrease) - Liabilities
Accounts Payable and Due to Factor (110,457) 129,257
Accrued Expenses and Other Liabilities 727,107 49,420
----------- -----------
Total Adjustments (4,177,738) 638,689
Net Cash Provided by (Used in)
Operating Activities (3,494,012) 848,649
Cash Flows from Investing Activities
Reduction (Increase) in security
deposit (139,617) (2,309)
Purchase of Equipment (1,251,766) (248,287)
Net Accounts Receivable acquired
from acquisition (352,974) -
Sale of Transportation and Other
Equipment 1,255,160 -
Cash paid for acquisitions (898,484) (161,228)
Payment for Refinancing of
Acquisition Debt - (55,274)
----------- -----------
Net Cash Used in Investing Activities (1,387,681) (467,098)
Subtotal (4,175,745) 381,551
7
<PAGE>
U.S. TRUCKING, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
(Continued)
For the Nine For the Nine
Months Ending Months Ending
September 30, 1999 September 30, 1998
(Unaudited) (Unaudited)
Cash Flows from Financing Activities
Proceeds from Revolving Credit Loan 20,602,120 -
Payments on Revolving Credit Loan (17,567,955) -
Proceeds from Long Term Debt Financing 1,071,229 -
Discount on Note Payable 13,344 -
Issuance of Preferred Stock 2,665,462 -
Sale of Common Stock 300,000 575,000
Sale of Convertible Debenture 1,040,000 -
Conversion of stock options 71,238 -
Paid in capital 401,688 -
Principal Payments on Long-Term Debt (2,168,727) (656,755)
Principal Payments on Capital Lease - (243,086)
Obligations
----------- -----------
Net Cash Provided by (Used in)
Financing Activities 6,415,055 (311,497)
Net Increase (Decrease) in Cash 1,533,362 70,054
Cash at Beginning of Year 22,976 60,099
----------- -----------
Cash at End of Period $ 1,556,338 $ 130,153
=========== ===========
Supplementary Disclosure of Cash
Flow Information
Cash Paid during the period
Interest Expense $ 596,048 $ 503,507
=========== ===========
Income Taxes $ -
===========
8
<PAGE>
U S TRUCKING, INC., AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
September 30, 1999
NOTE 1 - Basis of Presentation
The accompanying consolidated financial statements include the parent company,
US Trucking, Inc. and its wholly owned subsidiaries, Gulf Northern Transport,
Inc., ProStar, Inc., Mencor, Inc. and the US Trucking Captive Insurance
Program (hereinafter collectively called the "Company"). All material
inter-company items and transactions have been eliminated in consolidation.
The consolidated financial statements included herein have been prepared in
accordance with generally accepted accounting principles ("GAAP"), pursuant to
the rules and regulations of the Securities and Exchange Commission. Certain
information and footnote disclosures have been omitted or condensed pursuant
to such rules and regulations. In the opinion of management, all adjustments
(consisting of normal recurring adjustments) considered necessary for a fair
presentation have been included. Results of operations in interim periods are
not necessarily indicative of results for a full year. These consolidated
financial statements and notes thereto should be read in conjunction with the
Company's consolidated financial statements and notes. The preparation of
financial statements in accordance with GAAP requires management to make
estimates and assumptions. Such estimates and assumptions affect the reported
amounts of assets and liabilities as well as disclosure of contingent assets
and liabilities, at the date of the accompanying consolidated financial
statements, and the reported amounts of the revenues and expenses during the
reporting periods. Actual results could differ from those estimates.
NOTE 2 - Earnings per Share
Earnings per common share amounts are based on the weighted average number of
common shares outstanding and diluted earnings per share amounts are based on
the weighted average number of common shares outstanding plus the incremental
shares that would have been outstanding upon the assumed exercise of all
diluted preferred shares.
NOTE 3 - Segment Information
Description of the types of services from which each reportable segment
derives its revenues. The Company has four major business segments: long-haul
trucking of refrigerated and nonrefrigerated products, interstate freight
brokerage, trucking and brokerage agents program and a captive insurance
program for liability insurance for the trucking industry. During the fourth
quarter of 1998, the company adopted Statement of Financial Accounting
Standards No. 131, Disclosures about Segments of an Enterprise and Related
Information (SFAS 131).
The adoption of SFAS 131 requires the presentation of descriptive information
about reportable segments which is consistent with that made available to the
management of U.S. Trucking to assess performance. As a result of this
change, the Company now reports information on its truck brokerage operation.
In addition, during 1998, the company added the captive liability insurance
program (business) and reports that segment's performance similarly. In
determining the net income of each segment of the Company, 100% of the
interest expense is allocated to long-haul trucking and the agents program and
effective tax rates are determined for each business segment.
The Company evaluates performance and allocated resources based on net profit
and loss from operations.
9
<PAGE>
The Company's reportable segments are business units that offer different
transportation services. The reportable segments are each managed separately
because of their distinct differences in the operations.
NINE MONTHS ENDING SEPTEMBER 30, 1999
<TABLE>
<CAPTION>
Long Haul Agents Truck Liability
Trucking Program Brokerage Insurance Intersegment Total
---------- --------- --------- --------- ------------ ----------
<S> <C> <C> <C> <C> <C> <C>
Sales 23,195,461 1,459,227 4,521,499 1,485,780 (833,949) 29,828,018
Operating Income 420,589 65,450 266,151 184,978 (101,938) 835,230
Net Interest 562,252 5,250 4,382 - 24,164 596,048
Pretax Net Income (Loss) 231,415 60,200 261,768 184,978 (54,635) 683,726
Net Income (Loss) 231,415 60,200 261,768 184,978 (54,635) 683,726
Assets 22,368,773 1,328,057 1,778,527 2,170,161 0 27,645,518
Depreciation & Amorti-
zation 1,687,537 9,593 34,791 0 1,731,921
Additions to long-lived
Assets 768,766 483,000 - 0 1,251,766
</TABLE>
THREE MONTH PERIOD ENDED SEPTEMBER 30, 1999
<TABLE>
<CAPTION>
Long Haul Agents Truck Liability
Trucking Program Brokerage Insurance Intersegment Total
---------- --------- --------- --------- ------------ ----------
<S> <C> <C> <C> <C> <C> <C>
Sales 8,482,941 1,459,227 2,008,086 548,566 (494,971) 12,003,849
Operating Income 72,622 65,450 175,661 83,557 (101,938) 295,352
Net Interest 185,006 5,250 3,156 - 24,164 217,576
Pretax Net Income (Loss) 109,482 60,200 171,278 83,557 (54,635) 369,882
Net Income (Loss) 109,482 60,200 171,278 83,557 (54,635) 369,882
Assets 22,368,773 1,328,057 1,778,527 2,170,161 0 27,645,518
Depreciation and Amorti-
zation 553,729 9,593 21,882 585,204
Additions to long-lived
assets 524,093 483,000 - - 1,007,093
</TABLE>
10
<PAGE>
NINE MONTHS ENDING SEPTEMBER 30, 1998
<TABLE>
<CAPTION>
Long Haul Agents Truck Liability
Trucking Program Brokerage Insurance Intersegment Total
---------- --------- --------- --------- ------------ ----------
<S> <C> <C> <C> <C> <C> <C>
Sales 14,312,368 1,514,814 15,827,182
Operating Income 661,467 7,693 669,160
Net Interest 500,798 2,709 503,507
Pretax Net Income (Loss) 204,976 - 4,984 209,960
Net Income (Loss) 204,976 4,984 209,960
Assets 10,129,009 324,466 10,453,475
Depreciation & Amorti-
zation 1,184,481 2,061 1,186,542
Additions to long-lived
Assets 248,287 248,287
THREE MONTH PERIOD ENDED SEPTEMBER 30, 1998
</TABLE>
<TABLE>
<CAPTION>
Long Haul Agents Truck Liability
Trucking Program Brokerage Insurance Intersegment Total
---------- --------- --------- --------- ------------ ----------
<S> <C> <C> <C> <C> <C> <C>
Sales 4,798,660 479,136 5,277,796
Operating Income 208,554 (4,934) 203,620
Net Interest 196,857 976 197,833
Pretax Net Income (Loss) 23,048 (5,910) 17,138
Net Income (Loss) 23,048 (5,910) 17,138
Assets 10,129,009 324,466 10,453,475
Depreciation and Amorti-
zation 380,562 687 381,249
Additions to long-lived
assets 140,000 140,000
</TABLE>
NOTE 4 - Acquisition of Subsidiaries and other Assets and Liabilities
(A) The Company acquired the stock of Prostar, Inc., a South Carolina
brokerage company effective April 22, 1999. The purchase price was $840,000
based on $340,000 cash and the issuance of 200,000 shares of the company's
common stock valued at $2.50 per share. The purchase was allocated to the
11
<PAGE>
assets and liabilities acquired at their fair market values and $1,054,313 of
goodwill was recognized. The goodwill is being amortized over fifteen years on
a straight-line basis. $29,314 has been expensed during 1999. Adjustments if
any, to the purchase price allocations are not expected to have a material
impact on the accompanying consolidated financial statements.
(B) The Company completed the acquisition of a container freight hauling
business located in South Carolina effective late June 1999. The purchase
price was $950,000 based on $300,000 cash and 200,000 shares of the company's
common stock valued at $3.25 per share. As of September 30, 1999, $146,057 of
cash portion was still payable. This purchase of a business was recorded at
its estimated fair value, at the acquisition date, in accordance with AFB
Opinion 16 and $950,000 of goodwill was recognized. The goodwill is being
amortized over fifteen years on a straight-line basis.
(C) Effective September 1999, U.S. Trucking, Inc. acquired certain assets and
liabilities of Fulmer Transport, Inc., a Florida based transportation company.
The purchase price was $1,500,000 based on $457,000 cash and 125,000 shares of
the company's stock valued at $4.00 per share and payment of certain expenses
to affect the acquisition. The purchase price was allocated to the assets and
liabilities acquired at their fair market values and $865,057 of goodwill was
recognized. The goodwill is amortized over fifteen years on a straight-line
basis. $3,844 was expensed during the third quarter of 1999.
An allocation of the purchase price for each of the following transactions
follow:
Fulmer
Prostar, Inc. Rick Kelly Transport, Inc.
------------- ---------- ---------------
Assets:
Cash 103,353
Restricted Cash 150,906 -
Accounts Receivable 109,624 - 2,051,701
Notes Receivable 361,800
Inventory -
Transportation Equipment 15,795 - 463,000
Other Assets 52,804 -
Goodwill 1,054,313 950,000 838,314
--------- ------- ---------
Total 1,486,795 950,000 3,714,815
Liabilities assumed,
Equity and Cash Paid:
Liabilities assumed 645,795 - 2,214,815
Paid in Capital 1,000
Stock issued 500,000 650,000 500,000
Cash Paid 340,000 300,000 457,000
Other expenses - - 543,000
--------- ------- ---------
Total 1,486,795 950,000 3,714,815
12
<PAGE>
<TABLE>
<CAPTION>
Historical Historical
U.S. Trucking, Historical Historical Fulmar Pro Forma Pro Forma
Inc. Prostar Rick Kelly Transport Adjustments Combined
-------------- ---------- ---------- ---------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C>
Operating Revenues 22,984,116 5,784,179 3,456,200 14,007,581 (308,658) 45,923,418
Operating Expenses 22,748,055 5,623,895 3,093,344 14,023,538 (645,874) 44,842,958
Income (Loss) from
Operations 236,061 160,284 362,856 (15,957) 337,216 1,080,460
Other Income and Expenses
Interest income 126 5,104 - - - 5,230
Interest Expense (426,388) (74,419) (60,950) (245,097) 129,584 (677,270)
Other Income 450,039 1,089 - 31,213 - 482,341
Net Loss on Disposition
of Assets - - -
Total Other income and
expenses 23,777 (68,226) (60,950) (213,884) 129,584 (189,699)
Net income (loss) before
taxes 259,838 92,058 301,906 (229,841) 466,800 890,761
Provision for income taxes (122,345) (31,300) (68,648) - - 302,859
Benefit of net operating
loss carryforward 122,345 31,300 - - - (302,859)
Net income 259,838 92,058 233,258 (229,841) 466,800 890,761
Net income per common
share $0.02 $0.11
Weighted average number
of common shares 7,876,381 8,076,381
</TABLE>
13
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion of the Company's financial condition and results of
operations for the nine months ended September 30, 1999, and 1998 should be
read in conjunction with the Company's Consolidated Financial Statements and
Notes thereto contained elsewhere in this report.
This Quarterly Report on Form 10-Q contains forward-looking statements. The
words "believe," "expect," "anticipate", and similar expressions identify
forward-looking statements, speak only as of the date the statement was made.
Such forward-looking statements are within the meaning of that term in Section
27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended.
Such statements may include, but are not limited to, projections of revenues,
income, or loss, capital expenditures, plans for future operations, financing
needs or plans, the impact of inflation and plans relating to the foregoing.
Statements in the Company' Form 10-K, including Notes to the Consolidated
Financial Results of Operations, describe factors, among others, that could
contribute to or cause such differences.
GENERAL
The Company was established in January of 1997 by combining under U.S.
Trucking-Nevada the operations of Gulf Northern Transport, a mid-to-long-haul
truckload carrier and Mencor, Inc. a third party logistics (brokerage)
company.
The Company's operating results include the results of the truckload, agent
and container business of its operating subsidiary, Gulf Northern Transport,
Inc., it's brokerage operations, Mencor, Inc. and ProStar Inc., and the
Company's Captive Auto-Liability Insurance Program. The Company reported
profits in the nine month and three month periods ended September 30, 1999, by
increasing brokerage, agent and container owner-operator revenues and by
adding new profit flow from its Captive Auto-Liability Insurance Program.
RESULTS OF OPERATIONS
NINE MONTHS ENDED SEPTEMBER 30, 1999 COMPARED TO NINE MONTHS ENDED SEPTEMBER
30, 1998
Revenues increased 88.5% to $29.8 million for the nine months ended September
30, 1999 from $15.8 million for the same period ended in 1998. The reason for
this increase is attributed to five major factors: the Mid-Cal acquisition
which occurred on December 30, 1998, the ProStar acquisition which occurred on
April 22, 1999, the opening of an owner operator based container division in
June 1999 ,the acquisition of Fulmer Transport, Inc. in September 1999 and the
addition of a Captive Insurance Program in 1998. For the nine month period
ended September 30, 1999 acquisitions increased company revenues over the same
period in 1998 as follows: the Mid-Cal acquisition increased revenues
by $6.6 million, the ProStar acquisition increased revenues by $3.1 million,
the Fulmer Transport acquisition increased revenues by $1.5 million, the
container division increased revenues by $1.2 million and revenues from the
Captive Insurance Program increased $1.5 million.
Operating expenses increased by $13.8 million or 91.3% to $28.9 million for
the nine months ended September 30, 1999 from $15.2 million for the same
period in 1998. Operating expenses increased as a percentage of revenue to
97.2% for the nine months ended September 30, 1999 from 95.8% for the same
period in 1998. The primary factor causing this increase was the increase
14
<PAGE>
in general and administrative expenses which increased as a percentage of
revenue to 6.1% for the nine months ended September 30, 1999 from 3.9% for the
same period in 1998. Management believes as revenues continue to increase,
general and administrative expenses will start to decrease as a percentage of
revenue because the costs of centralizing the general office and being a
public company should level out going forward.
Purchased transportation increased by $7.0 million or 127% to $12.6 million or
42.2% of revenue for the nine months ended September 30, 1999 from $5.6
million or 35.1% of revenue for the same period ended in 1998. The reason for
this increase is higher settlements incurred from increased revenues generated
from brokerage, agents and container operations which historically have higher
purchased transportation costs associated with them. Brokerage settlements
increased by $2.8 million, agent settlements increased by $1.3 million and
settlements paid to owner operators increased $1.2 million for the nine months
ended September 30, 1999 compared to the same period in 1998.
Salaries, wages and benefits increased by $2.4 million to $6.4 million for the
nine months ended September 30, 1999 from $4.0 million for the same period
ended 1998 but decreased as percentage of revenue to 21.5% in 1999 compared to
25.3% in 1998. The reason for this decrease as percentage of revenue is
increased revenues generated from brokerage, owner operators and agents which
have much lower payroll costs associated with them.
Fuel expense increased by $843 thousand or 54% to $2.4 million for the nine
months ended September 30, 1999 from $1.56 million for the same period ended
in 1998 but decreased as a percentage of revenue to 8.1% for the nine months
ended September 30, 1999 from 9.9% for the same period ended in 1998. Fuel
expense decreased as percentage of revenue because of increased revenues
generated by brokerage, agents and owner operators which have no fuel costs
associated with them.
Operating supplies and maintenance increased by $243 thousand or 28.3% to $1.1
million for the nine months ended September 30, 1999 from $860 thousand for
the same period ended in 1998 but decreased as a percentage of revenue to 3.7%
for the nine months ended September 30, 1999 from 5.4% for the same period
ended in 1998. The reason for the decrease as a percentage of revenue is due
to increased revenues generated by brokerage, agents and owner operators which
have minor maintenance costs associated with them.
Insurance captive expense increased by $815 thousand to 2.7% of revenues for
the nine months ended September 30, 1999. The reason for the increase is a
change in accounting treatment for captive insurance that wasn't put into
effect until the 1998 year end. For the nine months ended September 30, 1998
all revenues and direct costs were reported at net as a decrease in insurance
expense. Beginning year end 1998 all premiums written from third party
truckers were classified as revenues and all costs associated with that
revenue were classified as captive insurance expense.
Depreciation and amortization increased by $540 thousand or 45.2% to $1.73
million for the nine months ended September 30, 1999 from $1.19 million for
the same period ended in 1998 but decreased as a percentage of revenue to 5.8%
for the nine months ended September 30, 1999 from 7.5% for the same period in
1998. The reason for this decrease as percentage of revenue is due to
increased revenues generated by brokerage, agents and owner operators which
have minimal depreciation costs associated with them. It should be noted
however that amortization expense increased $150 thousand to $306 thousand for
the nine months ended September 30, 1999 from $156 thousand for the same
period ended in 1998.
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Interest expense increased $83 thousand or 16.1% to $596 thousand for the nine
months ended September 30, 1999 from $513 thousand for the same period ended
in 1998 but decreased as percentage of revenue to 2.0% for the nine months
ended September 30, 1999 from 3.2% for the same period ended in 1998. The
reason for this decrease as a percentage of revenue is due to increased
revenues generated from brokerage, agents and owner operators which have
minimal interest expense associated with revenue equipment debt.
General and administrative expenses increased $530 thousand or 252% to $740
thousand or 6.2% of revenues for the nine months ended September 30, 1999,
from $211 thousand or 3.9% of revenues for the same period ended in 1998. The
primary reason for this increase as a percentage in revenue is that legal,
accounting and consulting expenses increased by $350 thousand to $381 thousand
for the nine months ended September 30, 1999, from $31 thousand for the same
period ended in 1998.
Gain on sale of equipment increased by $405 thousand for the nine months ended
September 30, 1999 in comparison to no gain in the same period in 1998. The
company was able to sell its unutilized and older equipment that had low book
values for amounts substantial enough to recognize gains.
Net income increased $474 thousand or 225% to $684 thousand for the nine
months ended September 30, 1999 from $210 thousand for the same period ended
in 1998. The primary reason for this increase is attributed to the gain on
sales mentioned previously.
THREE MONTHS ENDED SEPTEMBER 30, 1999 COMPARED TO THREE MONTHS ENDED SEPTEMBER
30, 1998
Revenues increased 135% to $12.0 million for the three months ended September
30, 1999 from $5.5 million for the same period ended in 1998. The reason for
this increase is attributed to five major factors: the Mid-Cal acquisition
which occurred on December 30, 1998, the ProStar acquisition which occurred on
April 22, 1999, the opening of an owner operator based container division in
June 1999, the acquisition of Fulmer Transport, Inc. in September 1999 and the
addition of an Captive Insurance Program in 1998. The Mid-Cal acquisition
increased revenues by $2.15 million, the ProStar acquisition increased
revenues by $1.53 million, the Fulmer Transport acquisition increased revenues
by $1.5 million, the opening of a container division increased revenues by
$1.0 million and revenues from the Captive Insurance Program increased by $549
thousand.
Operating expenses increased $6.8 million or 138.9% to $11.7 million for the
three months ended September 30, 1999 from $4.9 million for the same period
ended in 1998. Operating expenses increased as percentage of revenue to 97.5%
for the three months ended September 30, 1999 from 95.9% for the same period
in 1998. The one primary factor causing this increase was the increase in
general and administrative expenses which increased as a percentage of revenue
to 6.2% for the three months ended September 30, 1999 from 4.1% for the same
period in 1998. Management feels as revenues continue to increase, general and
administrative expenses will start to decrease as percentage of revenue
because the costs of centralizing the general office and being a public
company should level out going forward.
Purchased transportation increased by $3.62 million or 192% to $5.5 million or
45.8% of revenue for the three months ended September 30, 1999 from $1.89
million or 36.9% of revenue for the same period ended in 1998. The reason for
this increase is higher settlements incurred from increased revenues generated
from brokerage, agents and container operations which historically have higher
purchased transportation costs associated with them. Brokerage settlements
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increased by $1.34 million, agent settlements increased by $1.3 million and
settlements paid to owner operators increased $720 thousand for the three
months ended September 30, 1999 compared to the same period in 1998.
Salaries, wages and benefits increased by $926 thousand to $2.26 million for
the three months ended September 30, 1999 from $1.34 million for the same
period ended 1998 but decreased as percentage of revenue to 18.9% in 1999
compared to 26.2% in 1998. The reason for this decrease as percentage of
revenue is increased revenues generated from brokerage, owner operators and
agents which have much lower payroll costs associated with them.
Fuel expense increased by $499 thousand or 110% to $948 thousand for the three
months ended September 30, 1999 from $449 thousand for the same period ended
in 1998 but decreased as a percentage of revenue to 7.9% for the three months
ended September 30, 1999 from 8.8% for the same period ended in 1998. Fuel
expense decreased as percentage of revenue because of increased revenues
generated by brokerage, agents and owner operators which have no fuel costs
associated with them.
Operating supplies and maintenance increased by $239 thousand or 100.5% to
$477 thousand for the three months ended September 30, 1999 from $238 thousand
for the same period ended in 1998 but decreased as percentage of revenue to
4.0% for the three months ended September 30, 1999 from 4.7% for the same
period ended in 1998. The reason for the decrease as a percentage of revenue
is due to increased revenues generated by brokerage, agents and owner
operators which have minor maintenance costs associated with them.
Insurance captive expense increased by $232 thousand to 1.9% of revenues for
the three months ended September 30, 1999. The reason for the increase is a
change in accounting treatment for captive insurance that wasn't put into
effect until the 1998-year end. For the three months ended September 30, 1998
all revenues and direct costs were reported at net as a decrease in insurance
expense. Beginning year end 1998 all premiums written from third party
truckers were classified as revenues and all costs associated with that
revenue were classified as captive insurance expense.
Depreciation and amortization increased by $205 thousand or 54.7% to $585
thousand for the three months ended September 30, 1999 from $381 thousand for
the same period ended in 1998 but decreased as a percentage of revenue to 4.9%
for the three months ended September 30, 1999 from 7.5% for the same period in
1998. The reason for this decrease as percentage of revenue is due to
increased revenues generated by brokerage, agents and owner operators which
have minimal depreciation costs associated with them. It should be noted
however that amortization expense increased $124 thousand to $178 thousand for
the three months ended September 30, 1999 from $54 thousand for the same
period ended in 1998.
General and administrative expenses increased $1.19 million or 191% to $1.8
million or 6.1% of revenues for the nine months ended September 30, 1999, from
$622 thousand or 3.9% of revenues for the same period ended in 1998. The
primary reason for this increase as a percentage in revenue is that legal,
accounting and consulting expenses increased by $784 thousand and $906
thousand for the nine months ended September 30, 1999, from $122 thousand for
the same period ended in 1998.
Interest expense increased by $20 thousand or 9.7% to $218 thousand for the
three months ended September 30, 1999 from $198 thousand for the same period
ended in 1998 but decreased as percentage of revenue to 1.8% for the three
months ended September 30, 1999 from 3.9% for the same period ended in 1998.
17
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The reason for this decrease as a percentage of revenue is due to increased
revenues generated from brokerage, agents and owner operators which have
minimal interest expense associated with revenue equipment debt.
Gain on sale of equipment increased by $281 thousand for the three months
ended September 30, 1999 in comparison to no gains for the same period in
1998. The company was able to sell its unutilized and older equipment that had
low book values for amounts substantial enough to recognize gains
Net income increased $352 thousand to $370 thousand for the three months ended
September 30, 1999 from $17 thousand for the same period ended in 1998. The
primary reason for this increase is attributed to the gain on sales mentioned
in the paragraph above.
LIQUIDITY AND CAPITAL RESOURCES
At September 30, 1999 the Company had a working capital surplus of $1,065,473
as compared to a deficit of $1,912,731 at December 31, 1998. The Company's
working capital improved primarily due to $1,104,114 received from the sale of
transportation equipment in February 1999, $1,864,700 received from the sale
of Series B Preferred Stock, $800,000 received from the sale of Series D
Preferred Stock, $300,000 from the sale of common stock and $1,040,000 from
the sale of convertible debentures. Historically, the Company has had a
working capital deficit but has been able to meet its obligations as they come
due by utilizing its revolving credit facility with General Electric Capital
Corporation (after December 22, 1998) and its receivable factoring arrangement
with Transport Clearings (prior to December 22, 1998). In addition, the
Company has relied on equity investments from outside investors to facilitate
our cash flows. In order to continue with its growth plans, the Company
intends to continually raise additional funds through the private placement of
equity and/or debt securities, which will depend upon prevailing market
conditions, the market price of common stock and other factors over which the
Company has no control. Since September 30, 1999, the Company has raised
$2,300,000 in gross proceeds from the sale of Series E Preferred Convertible
Stock, $550,000 in gross proceeds from the sale of convertible debentures and
$2,000,000 in proceeds from the sale of common stock. In addition, since
September 30, 1999, $600,000 of convertible debentures have been converted to
263,360 shares of common stock.
During the nine month period ended September 30, 1999, cash flows from
operating activities decreased $4.34 million, from $847 thousand provided by
operating activities, to $3.49 million net cash used by operations from the
same period in 1998. Accounts receivable increased by $4.5 million for the
nine months ending September 30, 1999 compared to a $320 thousand increase for
the corresponding period in the prior year. The primary reason for the
increase was added revenues from the Mid-Cal, ProStar and Fulmer Transport
acquisitions. Accruals for independent contractor settlements, brokerage
freight settlements, and company driver payroll resulted in cash inflows of
$645 thousand, as compared to $49 thousand in accruals for these items in the
prior period. The reason for this increase is from the acquisitions
previously mentioned. Increase in notes receivable decreased cash flows
$664,404 for the nine months ended September 30, 1999, in comparison to zero
for the prior year. These notes are the result of equipment sales and notes
receivable inherited from the Fulmer Transport acquisition. Also, the Company
sold refrigerated trailers obtained in the Mid-Cal to Freedom Leasing for $1.1
million. The Company recorded a $124 thousand gain on sale for this
transaction and decreased our annual debt service by $78 thousand. In
addition, the Company sold unutilized and older equipment. Because of the low
book values, the Company recognized gains in the amount of $281 thousand
during September 1999.
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Cash flows in investing activities increased by $920 thousand from net cash
used of $467 thousand for the nine months ended September 30, 1998 to a net
cash used of $1.387 million for the same period ending in 1999. One reason for
this change was the net increase in fixed assets acquired of $1 million for
the nine months ended September 30, 1999 compared to the same period in
1998.This increase is reflected by the purchase of a new computer system along
with fixed assets acquired in the Fulmer Transport acquisition. The sale of
equipment to Freedom Leasing mentioned in the preceding paragraph created $1.1
million of cash inflows and $899 thousand in cash has been used to fund the
acquisitions of ProStar, the container division and Fulmer Transport .
Cash flows provided by financing activities increased $6.7 million during the
period from a net cash outflow of $312 thousand for the nine months ended
September 30, 1998 to a net cash inflow of $6.4 million for the same period in
1999. In addition to the sales of preferred stock and convertible debentures
discussed above, the Company received a $372 thousand capital contribution
during the first quarter of 1999. Principal payments on long term debt
increased by $1.51 million, from $657 thousand for the nine months ended
September 30, 1998 to $2.17 million for the same period in 1999. The reason
for this increase is twofold. One is more debt was inherited from the Mid-Cal
acquisition, thus more principal payments had to be made, and secondly $848
thousand of debt was paid down on the sale of 35 refrigerated trailers to
Freedom Leasing in February 1999. One other item which significantly changed
cash flow from a financing perspective was the increase in debt relating to
the revolving credit facility with General Electric Capital Corporation. This
created a $3.1 million increase in cash flow for the nine months ended
September 30, 1999 and can be directly linked to the increase in accounts
receivable created by the Mid-Cal, ProStar, container division and Fulmer
Transport acquisitions.
The Company completed a working capital financing agreement with General
Electric Capital Corporation on December 21, 1998. The transaction involved a
revolving credit facility in an amount up to $5,000,000 which replaced the
previous accounts receivable factoring facility. The term of the agreement is
for three years, with interest charges on amounts borrowed at the lender's
index rate (commercial paper rate) plus 4.5%. As of June 30, 1999, $1.8
million was outstanding on the line. While General Electric Capital
Corporation increased our credit facility to $7,000,000 in September, the
Company believes that this will not be sufficient to handle internal and
acquisition growth for the remainder of 1999. While the Company believes
General Electric Capital Corporation may increase our line further, there is
no assurance this will happen. In the event this does not happen, the Company
will have to rely on capital infusions from other sources.
The Company also completed two sale leaseback agreements and a total long-term
debt restructuring agreement with General Electric Capital Corporation on
December 22, 1998. The first lease agreement involved the trade-in of
seventeen older road tractors for twenty newer tractors. The amount received
on trade-in totaled $288,000, with the new lease after sale-leaseback
requiring $1,150,000 in rental payments. The term of the lease is for 48
months with monthly payments of $22,500. The second lease agreement involved
the trade-in of 87 older refrigerated and dry van trailers for 43 new
refrigerated and 20 new dry van trailers. The amount received on trade-in
totaled $349,000, with the new lease after sale-leaseback requiring $2,500,000
in rental payments. The term of this lease is 72 months with monthly payments
of $38,500. General Electric Capital Corporation also refinanced all other
long-term debt. The total debt refinanced amounted to $3.2 million, payable
over 36 months with monthly payments of $105,000.
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The foregoing transactions have yielded savings in repairs and maintenance but
the Company is not satisfied with the condition of the fleet. Accordingly, the
Company has ordered 100 year 2000 Volvo tractors, which when delivered with
the trade-in of all units year 1996 or older will make our tractor fleet much
more efficient and productive. General Electric Capital Corporation will be
lessor of record for the new fair market value lease with an aggregate cost of
$8.4 million, a lease term of 48 months and monthly payments of $138 thousand.
This arrangement requires a 10% advance to General Electric Capital
Corporation to be held as security for the our performance under each lease.
At the end of the lease term, the Company will have an option to 1) purchase
the equipment at the fair market value, 2) return the equipment to General
Electric Capital Corporation or 3) renew the lease at the then fair market
value rental rate. The Company believes this transaction will result in
higher equipment utilization and lower repair and maintenance costs and will
increase cash flow by $600 thousand annually. The 10% advance held as
security by General Electric Capital Corporation will be funded through an
engine rebate from Volvo Trucks North America, Inc. and the sale of a
convertible debenture. The Company believes that the amounts received for
trade-in's will be sufficient to pay off debt associated with them, currently
$2.3 million. The equipment debt left after trade-in's can be met through
operating cash flows. If the Company can't meet debt obligations or other
capital commitments through operating cash flows, capital infusions or debt
refinancings will need to be effected. The Company cannot give any assurance
this will happen. In addition, approximately $4.9 million of the above
described debt comes due within the next three years. While the Company
anticipates General Electric Capital Corporation or another lender will be
willing to refinance the debt remaining at such time, there can be no
assurances that this will happen.
INFLATION
Many of the Company's operating expenses, including fuel costs and fuel taxes,
are sensitive to the effects of inflation, which could result in higher
operating costs. The effects of inflation on the Company's business during
the nine months ended September 30, 1999, were negligible.
SEASONALITY
In the transportation industry, results of operations frequently show a
seasonal pattern. Seasonal variations may result from weather or from
customer's reduced shipments after the busy winter holiday season. To date,
the Company's revenues have not shown any significant seasonal pattern. The
current expansion of the Company's operations into the West Coast could expose
the Company to greater operating variances due to seasonal weather.
YEAR 2000 ISSUE
YEAR 2000
The Year 2000 issue concerns the inability of computer systems to recognize
and process date-sensitive information after 1999 due to the use of only the
last two numbers to refer to a year. This problem could affect both software
and hardware systems, resulting in equipment shutdowns, miscalculations,
inability to process data and/or disruption of operations (e.g. billing,
dispatch, settlement functions) as the Year 2000 approaches.
While we do not have a formal remediation plan related to Y2K readiness, we
recently upgraded our hardware systems and associated software with Y2K
compliant systems and software. All material company information technology
functions are handled by this new system, including initiation of loads,
dispatch, vehicle maintenance, electronic data interchange, fueling, billing,
20
<PAGE>
accounts payable and receivable, general ledger functions and preparation of
financial statements. The system has been certified as Y2K compliant by the
provider. We have also reviewed the risks associated with microprocessors
embedded in tractor engines and other components, terminal facilities and
telecommunications and other office equipment and determined that such systems
are either relatively new and were designed to be Year 2000 compliant or are
otherwise at low risk of a service-interrupting failure. We do not have a
written contingency plan in the event one of our systems fails.
We have surveyed all third parties (shippers and suppliers) with whom we have
a material relationship which could be impacted by their failure to be Y2K
compliant. While we do not have written assurances from such parties, we have
had extensive communications with certain of them to confirm Y2K readiness,
including our primary lender, our primary fuel and driver advance provider
and our twelve most important customers. They have all indicated that they
are Y2K compliant and we do not anticipate any interruption of service. The
primary risk associated with a Y2K failure with any of these third parties
would be the inability to communicate through electronic data interchange,
which is how we effect draws on our line of credit which finances daily
operations, how we effect driver fuel payments and advances, and how we
process customer freight pickup and delivery information. In the event of
failure of EDI functions we will perform tasks through telephonic and telecopy
communications, assuming power and telephone services are functioning. This
may result in an immaterial amount of additional personnel costs and could
result in short term disruptions in the pickup and delivery of customer
shipments due to s short-term inability to effectively communicate with
customers, in receiving funds required to finance our business and in
delivering to drivers funds required to complete freight pickups and
deliveries.
The worst case scenario relating to Year 2000 compliance is the possibility of
service disruption from third-party suppliers of telecommunications,
utilities, fueling and financial services. This scenario could result in the
short term inability to deliver freight for shippers. This would result in
lost or delayed freight revenues, the amount of which would be dependent upon
the length and nature of the disruption, which cannot be predicted or
estimated due to the nature and number of variables and uncertainties. There
can be no assurances that management or our third party suppliers have
identified and corrected all material internal or third party Y2K issues and
there cannot be any assurances that a Y2K problem will not have an adverse
effect on the our business.
The final cost of the new systems will be approximately $400,000 (financed
over three years), which costs will be capitalized.
21
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PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
None.
ITEM 2. CHANGES IN SECURITIES
During the three months ended September 30, 1999, the Company issued
securities in three transactions pursuant to the exemption offered by Section
4(2) of the Securities Act of 1933, and three transactions pursuant to Rule
506 under Regulation D.
The securities sold pursuant to Section 4(2) included 50,000 shares of common
stock sold to one accredited investor for $50,000 in cash, 100,000 shares
issued to an accredited investor upon conversion of a $300,000 promissory
note, and a $550,000 Convertible Debenture issued to an accredited investor.
In each of these transactions the investor was provided with information on
the Company and each person executed a document in which they represented that
they were purchasing the securities for investment only and not for the
purpose of resale or distribution. The appropriate restrictive legend was
placed on the certificates for the securities and stop transfer orders were
issued to the transfer agent for the common stock transactions.
The securities sold pursuant to Rule 506 included 100,000 shares of common
stock issued to one accredited investor for $300,000 in cash, 1,100 shares of
Series B convertible Preferred Stock sold to two accredited investors for
$1,100,000 in cash, and 950 shares of Series D Convertible Preferred Stock
sold to two accredited investors for $950,000 in cash. The investors who
purchased the 1,100 shares of Series B also received 146,667 warrants to
purchase the Company's common stock at a price of $2.59 per share and the
investors who purchase the 950 shares of Series D also received 126,668
warrants to purchase the Company's common stock at a price of $2.59 per share.
In each of these transactions the investor was provided with information on
the Company and each person executed an agreement in which they represented
that they were purchasing the securities for investment only and not for the
purpose of resale or distribution. A Form D was filed with the Securities
and Exchange Commission for each of these transactions and the appropriate
restrictive legend was placed on the certificates for the securities.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
ITEM 5. OTHER INFORMATION
None.
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ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS
EXHIBIT
NUMBER DESCRIPTION LOCATION
3.7 Articles of Amendment dated Filed herewith
September 10, 1999, regarding electronically
Series D Preferred Stock
3.8 Articles of Amendment dated Filed herewith
November 8, 1999, regarding electronically
Series E Preferred Stock
27 Financial Data Schedule Filed herewith
electronically
(b) Reports on Form 8-K. None.
SIGNATURES
In accordance with the requirements of the Exchange Act, the Issuer caused
this Report to be signed on it's behalf by the undersigned, thereunto duly
authorized.
U.S. TRUCKING, INC.
By:/s/ Dan L. Pixler
Dan L. Pixler, Chief Executive Officer
By:/s/ John Ragland
John Ragland, Chief Financial Officer
Dated: November 17, 1999
23
ARTICLES OF AMENDMENT TO
ARTICLES OF INCORPORATION
OF
U.S. TRUCKING, INC.
(SERIES D PREFERRED CONVERTIBLE STOCK)
FIRST:
That pursuant to authority expressly granted and vested in the Board of
Directors (the "Board of Directors" or the "Board") of this Corporation under
the Colorado Business Corporation Act and the provisions of the Articles of
Incorporation, the Board of Directors, on September 10, 1999, adopted the
following resolution setting forth the designations, powers, preferences and
rights of its Series D Convertible Preferred Stock (the "Statement of
Designation").
RESOLVED: That the designations, powers, preferences and rights of the Series
D Convertible Preferred Stock be, and they hereby are, as set forth below:
I. DESIGNATION AND AMOUNT
The designation of this series, which consists of 950 shares of Preferred
Stock, is the Series D Convertible Preferred Stock (the "Series D Preferred
Stock") and the stated value shall be One Thousand U.S. Dollars ($1,000.00)
per share (the "Stated Value").
II. NO DIVIDENDS
The Series D Preferred Stock will bear no dividends, and the holders of
the Series D Preferred Stock shall not be entitled to receive dividends on the
Series D Preferred Stock.
III. CERTAIN DEFINITIONS
For purposes of this Statement of Designation, the following terms shall
have the following meanings:
A. "Closing Bid Price" means, for any security as of any date, the
closing bid price of such security on the over-the-counter market on the
electronic bulletin board (the "Bulletin Board") or principal securities
exchange or trading market where such security is listed or traded as reported
by Bloomberg Financial Markets or if Bloomberg Financial Markets is not then
reporting closing bid prices of such security a comparable reporting service
of national reputation selected by the Corporation and reasonably acceptable
to holders of a majority of the then outstanding shares of Series D Preferred
Stock (collectively, "Bloomberg"). If the foregoing does not apply, if no bid
price is reported for such security by Bloomberg, the average of the bid
prices of any market makers for such security as reported in the "pink sheets"
by the National Quotation Bureau, Inc. If the Closing Bid Price cannot be
calculated for such security on such date on any of the foregoing bases, the
Closing Bid Price of such security on such date shall be the fair market value
as reasonably determined by an investment banking firm selected by the
Corporation and reasonably acceptable to holders of a majority of the then
outstanding shares of Series D Preferred Stock, with the costs of such
appraisal to be borne by the Corporation.
<PAGE>
B. "Conversion Date" means, for any Conversion, the date on which the
notice of conversion in the form attached hereto (the "Notice of Conversion")
is delivered by fax, as evidenced by a mechanically or electronically
generated confirmation thereof, (or delivered by other means resulting in
notice) to the Corporation before 6:00 p.m., New York City time on the
Conversion Date indicated in the Notice of Conversion. The holder shall
confirm, by overnight courier, in person (by courier or otherwise) or by
telephone (to an authorized officer of the Corporation or his or her
administrative assistant), the delivery of the Notice of Conversion to the
Corporation on the date on which the Notice of Conversion is delivered or
before 9:00 a.m., New York City time on the trading day immediately succeeding
such date; provided that an overnight courier delivery which is signed for or
refused by the Corporation prior to 12:00 noon, New York City time on a given
day shall be deemed to have been delivered before 9:00 a.m. New York City time
on such day. If the Notice of Conversion is not so faxed or otherwise
delivered or the overnight courier, in-person or telephone confirmation is not
so made or deemed to be made before such applicable times, then the Conversion
Date shall be the date as of which both such conditions are satisfied (i.e.,
the Notice of Conversion is delivered on or before 6:00 p.m. New York City
time on a given day and the overnight courier, in-person or telephone
confirmation is made or deemed to be made either on such day of delivery or
before 9:00 a.m. New York City time on the immediately succeeding trading
day).
C. "Conversion Price" means the lower of the Fixed Conversion Price and
the Variable Conversion Price, each in effect as of such date and subject to
adjustment as provided herein.
D. "First Conversion Date" means, with respect to Series D Preferred
Stock issued on any Issue Date the earliest of (i) the 121st day following the
Initial Issuance Date, (ii) the date the Corporation makes a public
announcement that it intends to merge or consolidate with any other entity
(other than a merger in which the Corporation is the surviving or continuing
entity and the voting capital stock of the Corporation immediately prior to
such merger represents at least 50% of the voting power of the capital stock
of the Corporation after the merger) or to sell or transfer all or
substantially all of the assets of the Corporation, (iii) the date any person,
group or entity (including the Corporation) publicly announces a tender offer,
exchange offer or another transaction to purchase 50% or more of the
Corporation's outstanding Common Stock or otherwise publicly announces an
intention to replace a majority of the Corporation's Board of Directors by
waging proxy battle or otherwise, or (iv) the date on which a Redemption Event
described in Article VIII.A(iv) occurs.
E. "Fixed Conversion Price" means $2.59 and shall be subject to
adjustment as provided herein.
F. "Initial Issuance Date" means the date of the First Closing under
that certain Securities Purchase Agreement dated as of September 9, 1999 by
and among the Corporation and the other signatories thereto (the "Securities
Purchase Agreement").
G. "Issuance Date" means for each share of Series D Preferred Stock, the
date on which such share is first issued by the Corporation.
H. "Market Price," as of any date, (i) means the average of the closing
bid prices for the shares of the corporation's Common Stock, no par value per
share ("Common Stock") as reported on the Bulletin Board by Bloomberg for the
ten consecutive trading days immediately preceding such date, or (ii) if the
Bulletin Board is not the principal trading market for the shares of Common
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Stock, the average of the closing bid prices as reported by Bloomberg on the
principal trading market or exchange for the Common Stock during the same
period, or, if there is no sale price for such period, the last reported bid
price as reported by Bloomberg for such period, or (iii) if market value
cannot be calculated as of such date on any of the foregoing bases, the Market
Price shall be the average fair market value as reasonably determined by an
investment banking firm selected by the Corporation and reasonably acceptable
to the holder, with the costs of the appraisal to be borne by the Corporation.
The manner of determining the Market Price of the Common Stock set forth in
the foregoing definition shall apply with respect to any other security in
respect of which a determination as to market value must be made hereunder.
I. "N" means, with respect to each share of Series D Preferred Stock,
the number of days from, but excluding, the Issuance Date until the date
Premium is first redeemed in accordance with Article IV.D hereof on such share
and thereafter the number of days from and including the date on which Premium
was last redeemed in accordance with Article IV.D hereof until the date
Premium is next redeemed on such share..
J. "Variable Conversion Price" means, as of any date of determination,
the amount obtained by multiplying 0.90 by the average of the Closing Bid
Prices for the Common Stock for any three (3) consecutive trading days chosen
by the holder of Series D Preferred Stock during the period beginning on the
twentieth trading day prior to the Conversion Date for such Conversion and
ending on such Conversion Date (subject to equitable adjustment for any stock
splits, stock dividends, reclassifications or similar events during such
trading day period), and shall be subject to adjustment as provided herein;
provided, however, beginning on that date which is one hundred eighty days
after the Initial Issuance Date, such twenty day period shall be increased by
one additional trading day for each thirty day period thereafter.
K. "Premium" means an amount equal to (X)x(N/365) x (1,000), where "X"
means twelve hundredths (.12).
IV. CONVERSION; REDEMPTION OF PREMIUM
A. Conversion at the Option of the Holder. Subject to the limitations
on conversions contained in Paragraph C of this Article IV and to the
Corporation's right of redemption contained in Article VIII.D, each holder of
shares of Series D Preferred Stock may, at any time and from time to time on
or after the First Conversion Date, convert (a "Conversion") each of its
shares of Series D Preferred Stock into a number of fully paid and
nonassessable shares of Common Stock determined in accordance with the
following formula:
$1,000
Conversion Price
B. Mechanics of Conversion. In order to effect a Conversion, a holder
shall: (x) fax (or otherwise deliver) a copy of the fully executed Notice of
Conversion to the Corporation or the transfer agent for the Common Stock and
(y) surrender or cause to be surrendered the original certificates
representing the Series D Preferred Stock being converted (the "Preferred
Stock Certificates"), duly endorsed, along with a copy of the Notice of
Conversion as soon as practicable thereafter to the Corporation or the
transfer agent. The holder shall confirm by overnight courier, in person (by
courier or otherwise) or by telephone (to an authorized officer of the
Corporation or his or her administrative assistant), the delivery of the
Notice of Conversion to the Corporation on the date on which the Notice of
Conversion is delivered or before 9:00 a.m. New York City time on the trading
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day immediately succeeding such date; provided that an overnight courier
delivery which is signed for or refused by the Corporation prior to 12:00
noon, New York City time on a given day shall be deemed to have been delivered
before 9:00 a.m. New York City time on such day. Upon receipt by the
Corporation of the Notice of Conversion by fax from a holder, the Corporation
shall, within one business day, following the later of the Corporation's
receipt of such Notice of Conversion and the holder's overnight courier,
in-person or telephone confirmation of the delivery of such Notice of
Conversion, send, via fax, a confirmation (the "Notice of Conversion
Confirmation") to such holder stating that the Notice of Conversion has been
received, the date upon which the Corporation expects to deliver the Common
Stock issuable upon such conversion, the name and telephone number of a
contact person at the Corporation regarding the conversion. The Corporation
shall not be obligated to issue shares of Common Stock upon a conversion
unless either the Preferred Stock Certificates are delivered to the
Corporation or the transfer agent as provided above, or the holder notifies
the Corporation or the transfer agent that such certificates have been lost,
stolen or destroyed and delivers the documentation to the Corporation required
by Article XIV.B hereof.
(i) Delivery of Common Stock Upon Conversion. Upon the surrender
of Preferred Stock Certificates from a holder of Series D Preferred Stock
accompanied by a Notice of Conversion, the Corporation shall, subject to the
Corporation's redemption rights set forth in Article VIII.D, no later than the
later of (a) the third business day following the Conversion Date and (b) the
business day following the date of such surrender (or, in the case of lost,
stolen or destroyed certificates, after provision of documentation pursuant
to Article XIV.B) (the "Delivery Period"), issue and deliver to the holder or
its nominee, after registration of the resale of such shares under the
Securities Act of 1933, as amended (the "Securities Act"), or delivery of
documentation reasonably satisfactory to the Corporation that the registration
of such shares is not required, to such holder's nominee, (x) that number of
shares of Common Stock issuable upon conversion of such shares of Series D
Preferred Stock being converted and (y) a certificate representing the number
of shares of Series D Preferred Stock not being converted, if any. If the
Corporation's transfer agent is participating in the Depository Trust
Corporation ("DTC") Fast Automated Securities Transfer program, and so long as
the certificates therefor do not bear a legend and the holder thereof is not
then required to return such certificate for the placement of a legend
thereon, the Corporation may cause its transfer agent to electronically
transmit the Common Stock issuable upon conversion to the holder by crediting
the account of the holder or its nominee with DTC through its Deposit
Withdrawal Agent Commission system ("DTC Transfer"). If the aforementioned
conditions to a DTC Transfer are not satisfied or a DTC Transfer is otherwise
not effected, the Corporation shall deliver to the holder physical
certificates representing the Common Stock issuable upon conversion. Further,
a holder may instruct the Corporation to deliver to the holder physical
certificates representing the Common Stock issuable upon conversion in lieu of
delivering such shares by way of DTC Transfer.
(ii) Taxes. The Corporation shall pay any and all taxes which may
be imposed upon the Corporation with respect to the issuance and delivery of
the shares of Common Stock upon the conversion of the Series D Preferred Stock
other than transfer taxes due upon conversion, if such holder has transferred
to another party the Series D Preferred Stock or the right to receive Common
Stock upon the holder's conversion thereof.
(iii) No Fractional Shares. If any conversion of Series D
Preferred Stock would result in the issuance of a fractional share of Common
Stock, such fractional share shall be disregarded and the number of shares of
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Common Stock issuable upon conversion of the Series D Preferred Stock shall be
rounded up or down to the nearest whole share, it being understood that .5 of
one share shall be rounded up to the next highest share.
(iv) Conversion Disputes. In the case of any dispute with respect
to a conversion, the Corporation shall promptly issue such number of shares of
Common Stock as are not disputed in accordance with subparagraph (i) above.
If such dispute involves the calculation of the Conversion Price, the
Corporation shall submit the disputed calculations to the Corporation's
outside auditors reasonably acceptable to the holder of Series D Preferred
Stock being converted via facsimile at any time prior to the expiration of the
Delivery Period. The accountant, at the Corporation's expense, shall audit the
calculations and notify the Corporation and the holder of the results as soon
as practicable following the date it receives the disputed calculations. The
accountant's calculation shall be deemed conclusive, absent manifest error.
The Corporation shall then issue the appropriate number of shares of Common
Stock in accordance with subparagraph (i) above.
C. Limitations on Conversions. The conversion of shares of Series D
Preferred Stock shall be subject to the following limitations (each of which
limitations shall be applied independently):
(i) Cap Amount. If, notwithstanding the representations and
warranties of the Corporation contained in the Securities Purchase Agreement,
the Corporation is prohibited by the rules or regulations of any securities
exchange or quotation system on which the Common Stock is then listed or
traded, from listing or issuing a number of shares of Common Stock in excess
of a prescribed amount (the "Cap Amount") without the approval of the
Corporation's shareholders, then the Corporation shall not be required to list
or issue, as applicable, shares in excess of the Cap Amount unless the
Corporation has obtained the required approvals. The Cap Amount shall be
allocated pro rata to the holders of Series D Preferred Stock as provided in
Article XIV.C. In the event a holder of Series D Preferred Stock submits a
Notice of Conversion and the Corporation is prohibited from listing or issuing
shares of Common Stock to satisfy such Notice of Conversion as a result of the
operation of this subparagraph (i), such holder shall be entitled to the
rights set forth in Article VII hereof.
(ii) No Five Percent Holders. Unless a holder of shares of Series D
Preferred Stock delivers a waiver in accordance with the last sentence of this
subparagraph (ii), in no event shall a holder of shares of Series D Preferred
Stock be entitled to receive shares of Common Stock upon a conversion to the
extent that the sum of (x) the number of shares of Common Stock beneficially
owned by the holder and its affiliates (exclusive of shares issuable upon
conversion of the unconverted portion of the shares of Series D Preferred
Stock or the unexercised or unconverted portion of any other securities of the
Corporation (including, without limitation, the warrants (the "Warrants")
issued by the Corporation pursuant to the Securities Purchase Agreements)
subject to a limitation on conversion or exercise analogous to the limitations
contained herein) and (y) the number of shares of Common Stock issuable upon
the conversion of the shares of Series D Preferred Stock with respect to which
the determination of this subparagraph is being made, would result in
beneficial ownership by the holder and its affiliates of more than 4.99% of
the outstanding shares of Common Stock. For purposes of this subparagraph,
beneficial ownership shall be determined in accordance with Section 13(d) of
the Securities Exchange Act of 1934, as amended, and Regulation 13 D-G
thereunder, except as otherwise provided in clause (x) above. Except as
provided in the immediately succeeding sentence, the restriction contained in
this subparagraph (ii) shall not be altered, amended, deleted or changed in
any manner whatsoever unless the holders of a majority of the outstanding
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shares of Common Stock and each holder of outstanding shares of Series D
Preferred Stock shall approve such alteration, amendment, deletion or change.
Notwithstanding the foregoing, a holder of shares of Series D Preferred Stock
may, by providing written notice to the Corporation, adjust the restriction
set forth in this subparagraph (ii) so that the limitation on beneficial
ownership of 4.99% of the outstanding shares of Common Stock referred to above
shall be increased to 9.99%, which adjustment shall not take effect until the
61st day after the date of such notice.
(iii) Percentage Limits on Conversion. Notwithstanding anything to
the contrary contained herein, no holder of shares of Series D Preferred Stock
may, without the prior written consent of the Corporation, on any one trading
day convert into shares of Common Stock a number of shares of Series D
Preferred Stock in excess of ten percent (10%) of the aggregate number of
shares of Series D Preferred Stock purchased by such holder from the
Corporation.
D. Redemption of Premium. The Corporation shall, on the fifteenth
(15th) day of each calendar month, redeem in cash any and all accrued and
unpaid Premium as of such date. All such redemption payments hereunder shall
be paid in lawful money of the United States of America at such address for
the holder as appears on the record books of the Corporation (or at such other
address as such holder shall hereafter give to the Corporation by written
notice).
V. RESERVATION OF SHARES OF COMMON STOCK
A. Reserved Amount. On the Issuance Date of shares of Series D
Preferred Stock, the Corporation shall reserve 200% of the number of shares
which would be issuable if the outstanding shares of Series D Preferred Stock
were converted in their entirety on the such Issuance Date based on the
Conversion Price in effect on such Issuance Date of the authorized but
unissued shares of Common Stock for issuance upon conversion of the Series D
Preferred Stock and thereafter the number of authorized but unissued shares of
Common Stock so reserved (the "Reserved Amount") shall not be decreased and
shall at all times be sufficient to provide for the conversion of the Series D
Preferred Stock outstanding at the then current Conversion Price thereof. The
Reserved Amount shall be allocated to the holders of Series D Preferred Stock
as provided in Article XIV.C.
B. Increases to Reserved Amount. If the Reserved Amount for any three
consecutive trading days (the last of such three trading days being the
"Authorization Trigger Date") shall be less than 135% of the number of shares
of Common Stock issuable upon conversion of the then outstanding shares of
Series D Preferred Stock, the Corporation shall immediately notify the holders
of Series D Preferred Stock of such occurrence and shall take immediate action
(including, if necessary, seeking shareholder approval to authorize the
issuance of additional shares of Common Stock) to increase the Reserved Amount
to 200% of the number of shares of Common Stock then issuable upon conversion
of the outstanding Series D Preferred Stock. In the event the Corporation
fails to so increase the Reserved Amount within 90 days after an Authorization
Trigger Date (such event being the "Reserved Amount Trigger Event"), each
holder of Series D Preferred Stock shall thereafter have the option,
exercisable in whole or in part at any time and from time to time by delivery
of a Redemption Notice (as defined in Article VIII.C) to the Corporation, to
require the Corporation to purchase for cash, at an amount per share equal to
the Redemption Amount (as defined in Article VIII.B), a portion of the
holder's Series D Preferred Stock such that, after giving effect to such
purchase, the holder's allocated portion of the Reserved Amount exceeds 135%
of the total number of shares of Common Stock issuable to such holder upon
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conversion of its Series D Preferred Stock. If the Corporation fails to
redeem any of such shares within five (5) business days after its receipt of
such Redemption Notice, then such holder shall be entitled to the remedies
provided in Article VIII.C.
C. Adjustment to Conversion Price. If the Corporation is prohibited, at
any time, from issuing shares of Common Stock upon conversion of Series D
Preferred Stock to any holder because the Corporation does not then have
available a sufficient number of authorized and reserved shares of Common
Stock, then the Fixed Conversion Price in respect of any shares of Series D
Preferred Stock held by any holder (including shares of Series D Preferred
Stock submitted to the Corporation for conversion, but for which shares of
Common Stock have not been issued to any such holder) shall be adjusted as
provided in Article VI.A.
D. Limitations on Redemption Right. Notwithstanding the provisions of
Paragraph B of this Article V, the holders of Series D Preferred Stock shall
have no right to require the Corporation to effect a redemption of their
outstanding shares of Series D Preferred Stock as provided in Paragraph B of
this Article V so long as (i) the Corporation has not, at any time, decreased
the Reserved Amount below that number of shares of Common Stock computed as
set forth in Article V.A.; (ii) the Corporation shall have taken immediate
action following the applicable Authorization Trigger Date (including, if
necessary, seeking stockholder approval to authorize the issuance of
additional shares of Common Stock) to increase the Reserved Amount to 200% of
the number of shares of Common Stock then issuable upon conversion of the
outstanding Series D Preferred Stock; and (iii) the Corporation continues to
use all commercially reasonable good faith best efforts (including the
resolicitation of stockholder approval to authorize the issuance of additional
shares of Common Stock) to increase the Reserved Amount to 200% of the number
of shares of Common Stock then issuable upon conversion of the outstanding
Series D Preferred Stock. The Corporation will be deemed to be using "all
commercially reasonable good faith best efforts" to increase the Reserved
Amount so long as it solicits stockholder approval to authorize the issuance
of additional shares of Common Stock not less than three (3) times during each
twelve month period following the applicable Authorization Trigger Date during
which any shares of Series B Preferred Stock remain outstanding.
VI. FAILURE TO SATISFY CONVERSIONS
A. Conversion Defaults. The following shall constitute a "Conversion
Default": (i) following the submission by a holder of shares of Series D
Preferred Stock of a Notice of Conversion, the Corporation fails for any
reason (other than because of an event described in clause (iii) below) to
deliver, on or prior to the tenth business day following the expiration of the
Delivery Period for such conversion, such number of shares of Common Stock
without a restrictive legend covered by an effective registration statement to
which such holder is entitled upon such conversion, (ii) the Corporation
provides notice to any holder of Series D Preferred Stock at any time of its
intention not to issue freely tradeable shares of Common Stock upon exercise
by any holder of its conversion rights in accordance with the terms of this
Statement of Designation (other than because of an event described in clause
(iii) below), or (iii) the Corporation is prohibited, at any time, from
listing shares of Common Stock or from issuing shares of Common Stock upon
conversion of Series D Preferred Stock to any holder because the Corporation
(A) does not at the date of such conversion have available a sufficient number
of authorized and reserved shares of Common Stock or (B) such listing or
issuance would exceed the then unissued portion of such holder's Cap Amount.
In the case of a Conversion Default described in clause (i) or (iii) above,
the Fixed Conversion Price in respect of any shares of Series D Preferred
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Stock held by such holder (including shares of Series D Preferred Stock
submitted to the Corporation for conversion, but for which shares of Common
Stock have not been issued to such holder) shall thereafter be the lesser of
(x) the Fixed Conversion Price on the date of the Conversion Default and (y)
the lowest Conversion Price in effect during the period beginning on, and
including, such date through and including (A) in the case of a Conversion
Default referred to in clause (i) above, the earlier of (1) the day such
shares of Common Stock are delivered to the holder and (2) the day on which
the holder regains its rights as a holder of Series D Preferred Stock with
respect to such unconverted shares of Series D Preferred Stock pursuant to the
provisions of Article XIV.F hereof, and (B) in the case of a Conversion
Default referred to in clause (iii) above, the date on which the prohibition
on listing or issuance of Common Stock terminates. In the case of a
Conversion Default described in clause (ii) above, the Fixed Conversion Price
with respect to any conversion thereafter shall be the lowest Conversion Price
in effect at any time during the period beginning on, and including, the date
of the occurrence of such Conversion Default through and including the Default
Cure Date (as defined below). Following any adjustment to the Fixed
Conversion Price pursuant to this Article VI.A, the Fixed Conversion Price
shall thereafter be subject to further adjustment for any events described in
Article XI. Upon the occurrence of each reset of the Fixed Conversion Price
pursuant to this Paragraph A, the Corporation, at its expense, shall promptly
compute the new Fixed Conversion Price and prepare and furnish to each holder
of Series D Preferred Stock a certificate setting forth such new Fixed
Conversion Price and showing in detail each Conversion Price in effect during
such reset period.
"Default Cure Date" means (i) with respect to a Conversion Default
described in clause (i) of its definition, the date the Corporation effects
the conversion of the full number of shares of Series D Preferred Stock, (ii)
with respect to a Conversion Default described in clause (ii) of its
definition, the date the Corporation issues shares of Common Stock without a
restrictive legend covered by an effective registration statement in
satisfaction of all conversions of Series D Preferred Stock in accordance with
Article IV.A, and (iii) with respect to a Conversion Default described in
clause (i) or clause (ii) of its definition, the date on which the Corporation
redeems shares of Series D Preferred Stock held by such holder pursuant to
paragraph C of this Article VI.
B. Intentionally Omitted.
C. Redemption Right. If the Corporation fails, and such failure
continues uncured for five (5) business days after the Corporation has been
notified thereof in writing by the holder, for any reason (other than because
such issuance would exceed such holder's allocated portion of the Reserved
Amount or Cap Amount, for which failures the holders shall have the remedies
set forth in Articles V and VII, respectively) to issue shares of Common Stock
within 10 business days after the expiration of the Delivery Period with
respect to any conversion of Series D Preferred Stock, then the holder may
elect at any time and from time to time prior to the Default Cure Date for
such Conversion Default, by delivery of a Redemption Notice to the
Corporation, to have all of such holder's shares of Series D Preferred Stock
which were submitted for conversion purchased by the Corporation for cash, at
an amount per share equal to the Redemption Amount (as defined in Article
VIII.B). If the Corporation fails to redeem any of such shares within five
business days after its receipt of such Redemption Notice, then such holder
shall be entitled to the remedies provided in Article VIII.C.
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D. Void Notice of Conversion. If for any reason a holder has not
received all of the shares of Common Stock prior to the tenth (10th) business
day after the expiration of the Delivery Period with respect to a conversion
of Series D Preferred Stock and such shares are not subject to a redemption
notice from the holder thereof, then the holder, upon written notice to the
Corporation's transfer agent, with a copy to the Corporation, may void its
Notice of Conversion with respect to, and retain or have returned, as the case
may be, any shares of Series D Preferred Stock that have not been converted
pursuant to such holder's Notice of Conversion; provided that the voiding of a
holder's Notice of Conversion shall not affect such holders rights and
remedies which have accrued prior to the date of such notice pursuant to
Article VI hereof or otherwise.
VII. INABILITY TO LIST OR CONVERT DUE TO CAP AMOUNT
A. Obligation to Cure. If at any time after September 10, 1999 the then
unissued portion of any holder's Cap Amount is less than 135% of the number of
shares of Common Stock then issuable upon conversion of such holder's shares
of Series D Preferred Stock (a "Trading Market Trigger Event"), the
Corporation shall immediately notify the holders of Series D Preferred Stock
of such occurrence and shall take immediate action (including, if necessary,
seeking the approval of its shareholders to authorize the listing or issuance
of the full number of shares of Common Stock which would be issuable upon the
conversion of the then outstanding shares of Series D Preferred Stock but for
the Cap Amount) to eliminate any prohibitions under applicable law or the
rules or regulations of any stock exchange, interdealer quotation system or
other self-regulatory organization with jurisdiction over the Corporation or
any of its securities on the Corporation's ability to list or issue shares of
Common Stock in excess of the Cap Amount ("Trading Market Prohibitions"). In
the event the Corporation fails to eliminate all such Trading Market
Prohibitions within 120 days after the Trading Market Trigger Event, then each
holder of Series D Preferred Stock shall thereafter have the option,
exercisable in whole or in part at any time and from time to time until such
date that all such Trading Market Prohibitions are eliminated, by delivery of
a Redemption Notice (as defined in Article VIII.C) to the Corporation, to
require the Corporation to purchase for cash, at an amount per share equal to
the Redemption Amount, a number of the holder's shares of Series D Preferred
Stock such that, after giving effect to such redemption, the then unissued
portion of such holder's Cap Amount exceeds 135% of the total number of shares
of Common Stock issuable upon conversion of such holder's shares of Series D
Preferred Stock. If the Corporation fails to redeem any of such shares within
five (5) business days after its receipt of such Redemption Notice, then such
holder shall be entitled to the remedies provided in Articles VII.B and
VIII.C.
B. Remedies. If the Corporation fails to redeem any shares of Series D
Preferred Stock pursuant to Article VII.A within five business days after its
receipt of such Redemption Notice, and thereafter the Corporation is
prohibited, at any time, from listing shares of Common Stock or from issuing
shares of Common Stock upon conversion of Series D Preferred Stock to any
holder because such listing or issuance would exceed the then unissued portion
of such holder's Cap Amount because of applicable law or the rules or
regulations of any stock exchange, interdealer quotation system or other
self-regulatory organization with jurisdiction over the Corporation or its
securities, any holder who is so prohibited from converting its Series D
Preferred Stock because the shares of Common Stock underlying such Series D
Preferred Stock may not be listed or issued, may elect either or both of the
following additional remedies:
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(i) to require, with the consent of holders of at least fifty
percent (50%) of the outstanding shares of Series D Preferred Stock (including
any shares of Series D Preferred Stock held by the requesting holder), the
Corporation to terminate the trading of its Common Stock on the Bulletin Board
(or any other stock exchange, interdealer quotation system or trading market)
and to cause its Common Stock to be eligible for trading on the "pink sheets";
or
(ii) to require the Corporation to issue shares of Common Stock in
accordance with such holder's Notice of Conversion at a conversion price equal
to the average of the Closing Bid Prices for the Common Stock during the five
consecutive trading days ending on the trading day immediately preceding the
date of the holder's written notice to the Corporation of its election to
receive shares of Common Stock pursuant to this subparagraph (ii) (subject to
equitable adjustment for any stock splits, stock dividends, reclassifications
or similar events during such five trading day period).
C. Adjustment to Conversion Price. If the Corporation is prohibited,
at any time, from listing shares of Common Stock or from issuing shares of
Common Stock upon conversion of Series D Preferred Stock to any holder because
such listing or issuance would exceed the then unissued portion of such
holder's Cap Amount because of applicable law or the rules or regulations of
any stock exchange, interdealer quotation system or other self-regulatory
organization with jurisdiction over the Corporation or its securities, then
the Fixed Conversion Price in respect of any shares of Series D Preferred
Stock held by any holder (including shares of Series D Preferred Stock
submitted to the Corporation for conversion, but for which shares of Common
Stock have not been issued) shall be adjusted as provided in Article VI.A.
VIII. REDEMPTION
A. Redemption by Holder. In the event (each of the events described in
clauses (i)-(vii) below after expiration of the applicable cure period (if
any) being a "Redemption Event"):
(i) the Common Stock (including, from and after the First
Conversion Date, any of the shares of Common Stock issuable upon conversion of
the Series D Preferred Stock) is suspended from trading on any of, or is not
listed (and authorized) for trading on at least one of, the Bulletin Board,
NASDAQ Small Cap Market, the NASDAQ National Market, the New York Stock
Exchange or the American Stock Exchange for an aggregate of 10 full trading
days in any nine month period;
(ii) the Corporation fails to remove any restrictive legend on any
certificate or any shares of Common Stock issued to the holders of Series D
Preferred Stock (a "Legend Removal Failure") upon conversion of the Series D
Preferred Stock as and when required by this Statement of Designation, the
Securities Purchase Agreement or that certain Registration Rights Agreement
(the "Registration Rights Agreement") by and among the Corporation and the
other signatories thereto entered into in connection with the Securities
Purchase Agreement and any such failure continues uncured for ten business
days after the Corporation has been notified thereof in writing by the holder;
(iii) the Corporation provides notice to any holder of Series D
Preferred Stock, including by way of public announcement, at any time, of its
intention not to issue, or otherwise refuses to issue, shares of Common Stock
to any holder of Series D Preferred Stock upon conversion in accordance with
the terms of this Statement of Designation (other than due to the
circumstances contemplated by Articles V or VII for which the holders shall
have the remedies set forth in such Articles);
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(iv) the Corporation shall:
(a) sell, convey or dispose of all or substantially all of its
assets (the presentation of any such transaction for stockholder approval
being conclusive evidence that such transaction involves the sale of all or
substantially all of the assets of the Corporation); or
(b) merge, consolidate or engage in any other business
combination with any other entity (other than pursuant to a migratory merger
effected solely for the purpose of changing the jurisdiction of incorporation
of the Corporation and other than pursuant to a merger in which the
Corporation is the surviving or continuing entity and the voting capital stock
of the Corporation immediately prior to such merger represents at least 50% of
the voting power of the capital stock of the Corporation after the merger) and
its capital stock is unchanged; or
(c) have fifty percent (50%) or more of the voting power of
its capital stock owned beneficially by one person, entity or "group" (as such
term is used under Section 13(d) of the Securities Exchange Act of 1934, as
amended), other than Logistics Management LLC and its current affiliates;
(v) the Corporation otherwise shall breach any material term
hereunder or under the Securities Purchase Agreement or the Registration
Rights Agreement and such breach continues for 5 business days after the
Corporation has been notified thereof in writing by the holder; or
(vi) as of the last day of any Trading Volume Valuation Period
(defined below) and the Trading Volume Value (defined below) for such Trading
Volume Valuation Period shall not equal or exceed $150,000. The term "Trading
Volume Valuation Period" shall mean any twenty (20) consecutive trading day
period during the period beginning on the one hundred eightieth (180th) day
after the Initial Issuance Date and continuing thereafter. The term "Trading
Volume Value" shall mean, for any Trading Volume Valuation Period, the
average of the products obtained by multiplying (i) the Closing Bid Price for
the Common Stock on a trading day by (ii) the total actual number of shares of
Common Stock purchased on the Bulletin Board or the principal exchange or
market on which the Common Stock is traded on such trading day for each
trading day in such Trading Volume Valuation Period.
then, upon the occurrence of any such Redemption Event, each holder of shares
of Series D Preferred Stock shall thereafter have the option, exercisable in
whole or in part at any time and from time to time by delivery of a Redemption
Notice (as defined in Paragraph C below) to the Corporation while such
Redemption Event continues, to require the Corporation to purchase for cash
any or all of the then outstanding shares of Series D Preferred Stock held by
such holder for an amount per share equal to the Redemption Amount (as defined
in Paragraph B below) in effect at the time of the redemption hereunder. For
the avoidance of doubt, the occurrence of any event described in clauses (i),
(iii) or (iv) above shall immediately constitute a Redemption Event and there
shall be no cure period. Upon the Corporation's receipt of any Redemption
Notice hereunder (other than during the three trading day period following the
Corporation's delivery of a Redemption Announcement (as defined below) to all
of the holders in response to the Corporation's initial receipt of a
Redemption Notice from a holder of Series D Preferred Stock), the Corporation
shall immediately (and in any event within one business day following such
receipt) deliver a written notice (a "Redemption Announcement") to all holders
of Series D Preferred Stock stating the date upon which the Corporation
received such Redemption Notice and the amount of Series D Preferred Stock
covered thereby. Subject to Article VIII.D, the Corporation shall not redeem
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any shares of Series D Preferred Stock during the three trading day period
following the delivery of a required Redemption Announcement hereunder. At
any time and from time to time during such three trading day period, each
holder of Series D Preferred Stock may request (either orally or in writing)
information from the Corporation with respect to the instant redemption
(including, but not limited to, the aggregate number of shares of Series D
Preferred Stock covered by Redemption Notices received by the Corporation) and
the Corporation shall furnish (either orally or in writing) as soon as
practicable such requested information to such requesting holder.
Notwithstanding anything in this Article VIII.A to the contrary, the
holders of Series D Preferred Stock shall have no right to deliver a
Redemption Notice following the occurrence of a Redemption Event specified in
clause (i) above if the Corporation pays to each holder within five (5)
business days after the occurrence of such Redemption Event and on each three
month anniversary thereafter, as liquidated damages for the decrease in the
value of the Series D Preferred Stock (and the shares of the Corporation's
Common Stock issuable upon conversion thereof) which will result from the
occurrence of such Redemption Event, an amount (the "Damages Amount") equal to
ten percent (10%) of the aggregate Stated Value of the shares of Series D
Preferred Stock then held by each such holder. The Damages Amount shall be
payable, at the Corporation's option, in cash or shares of Common Stock (based
upon a price per share of Common Stock equal to eighty percent (80%) of the
Variable Conversion Price in effect as of the date of such Redemption Event).
Notwithstanding anything in this Article VIII.A to the contrary, if the
holders of Series D Preferred Stock deliver a Redemption Notice following the
occurrence of a Redemption Event specified in clause (vi) above, the
Corporation may at its election in lieu of paying the Redemption Amount pay to
the holders of Series D Preferred Stock the Trading Value Redemption Amount
(as defined below). The "Trading Value Redemption Amount" with respect to a
share of Series D Preferred Stock means an amount equal to the Stated Value
hereof multiplied by 1.2 plus the accrued and unpaid Premium thereon through
the date of payment of the Trading Value Redemption Amount. Notwithstanding
anything in this Article VIII.A to the contrary, the Trading Value Redemption
Amount shall be payable, at the Corporation's option, in cash or shares of
Common Stock (based upon a price per share of Common Stock equal to eighty
percent (80%) of the Variable Conversion Price in effect as of the date of
such Redemption Event). If the Corporation elects to pay such amount in
shares of Common Stock such shares shall be issued not later than five (5)
business days after the date the Trading Value Redemption Amount becomes due
and such shares for all purposes shall constitute Registrable Securities (as
defined in the Registration Rights Agreement). If the Corporation elects to
pay such amount in cash, the Corporation shall pay such amount in twelve (12)
equal monthly installments plus interest on such amount at a per annum,
compounded rate of twelve percent (12%). Such interest will begin to accrue
and the first of such payments shall be made on the date the Trading Value
Redemption Amount becomes due. The Corporation shall have the right to prepay
any such cash amount.
B. Definition of Redemption Amount. The "Redemption Amount" with
respect to a share of Series D Preferred Stock means an amount equal to:
V x M
C P
where:
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"V" means the Stated Value thereof, plus the accrued Premium thereon
through the date of payment of the Redemption Amount;
"CP" means the Conversion Price in effect on the date on which the
Corporation receives the Redemption Notice; and
"M" means the higher of (i) the highest Closing Bid Price of the
Corporation's Common Stock during the period beginning on the date on which
the Corporation receives the Redemption Notice and ending on the date
immediately preceding the date of payment of the Redemption Amount and (ii)
the fair market value, as of the date on which the Corporation receives the
Redemption Notice, of the consideration payable to the holder of a share of
Common Stock pursuant to the transaction which triggers the redemption. For
purposes of this definition, "fair market value" shall be determined by the
mutual agreement of the Corporation and holders of a majority-in-interest of
the shares of Series D Preferred Stock then outstanding, or if such agreement
cannot be reached within five business days prior to the date of redemption,
by an investment banking firm selected by the Corporation and reasonably
acceptable to holders of a majority-in-interest of the then outstanding shares
of Series D Preferred Stock, with the costs of such appraisal to be borne by
the Corporation.
C. Redemption Defaults. If the Corporation fails to pay any holder the
Redemption Amount or Trading Value Redemption Amount with respect to any share
of Series D Preferred Stock within five business days after its receipt of a
notice requiring such redemption (a "Redemption Notice"), then the holder of
Series D Preferred Stock delivering such Redemption Notice (i) shall be
entitled to interest on the Redemption Amount at a per annum rate equal to the
lower of twenty-four percent (24%) and the highest interest rate permitted by
applicable law from the date on which the Corporation receives the Redemption
Notice until the date of payment of the Redemption Amount hereunder, and (ii)
shall have the right, at any time and from time to time, to require the
Corporation, upon written notice, to immediately convert (in accordance with
the terms of Paragraph A of Article IV) all or any portion of the Redemption
Amount, plus interest as aforesaid, into shares of Common Stock at the lowest
Conversion Price in effect during the period beginning on the date on which
the Corporation receives the Redemption Notice and ending on the Conversion
Date with respect to the conversion of such Redemption Amount. In the event
the Corporation is not able to redeem all of the shares of Series D Preferred
Stock subject to Redemption Notices delivered prior to the date upon which
such redemption is to be effected, the Corporation shall redeem shares of
Series D Preferred Stock from each holder pro rata, based on the total number
of shares of Series D Preferred Stock outstanding at the time of redemption
included by such holder in all Redemption Notices delivered prior to the date
upon which such redemption is to be effected relative to the total number of
shares of Series D Preferred Stock outstanding at the time of redemption
included in all of the Redemption Notices delivered prior to the date upon
which such redemption is to be effected.
D. Void Redemption. In the event that the Corporation does not pay the
Redemption Amount within the time period set forth in Article IV.D, Article
VIII.A or Article VIII.D, at any time thereafter and until the Corporation
pays such unpaid applicable Redemption Amount in full, a holder of Series D
Preferred Stock shall have the option (the "Void Optional Redemption Option")
to, in lieu of redemption, require the Corporation to promptly return to such
holder any or all of the shares of Series D Preferred Stock that were
submitted for redemption by such holder under this Article VIII and for which
the applicable Redemption Amount (together with any interest thereon) has not
been paid, by sending written notice thereof to the Corporation via facsimile
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and confirmed by overnight courier, in person (by courier or otherwise) or by
telephone (to an authorized officer of the Corporation or his or her
administrative assistant) (the "Void Optional Redemption Notice"). Upon the
Corporation's receipt of such Void Optional Redemption Notice and overnight
courier, in-person or telephone confirmation, (i) the Notice of Redemption
shall be null and void with respect to those shares of Series D Preferred
Stock subject to the Void Optional Redemption Notice, and (ii) the Corporation
shall immediately return any shares of Series D Preferred Stock subject to the
Void Optional Redemption Notice
IX. RANK
The Series D Preferred Stock shall rank (i) prior to the Corporation's
Common Stock; (ii) prior to any class or series of capital stock of the
Corporation hereafter created that, by its terms, ranks junior to the Series D
Preferred Stock ("Junior Securities"); (iii) junior to any class or series of
capital stock of the Corporation hereafter created (with the consent of the
holders of Series D Preferred Stock, obtained in accordance with Article XIII
hereof) specifically ranking, by its terms, senior to the Series C Preferred
Stock ("Senior Securities"); and (iv) pari passu with the Series A Preferred
Stock and Series B Preferred Stock of the Corporation and any other class or
series of capital stock of the Corporation hereafter created (with the consent
of the holders of the Series D Preferred Stock obtained in accordance with
Article XIII hereof) specifically ranking by its terms on parity with the
Series D Preferred Stock ("Pari Passu Securities"), in each case as to
distribution of assets upon liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary.
X. LIQUIDATION PREFERENCE
A. If the Corporation shall commence a voluntary case under the U.S.
Federal bankruptcy laws or any other applicable bankruptcy, insolvency or
similar law, or consent to the entry of an order for relief in an involuntary
case under any law or to the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or other similar official) of the
Corporation or of any substantial part of its property, or make an assignment
for the benefit of its creditors, or admit in writing its inability to pay its
debts generally as they become due, or if a decree or order for relief in
respect of the Corporation shall be entered by a court having jurisdiction in
the premises in an involuntary case under the U.S. Federal bankruptcy laws or
any other applicable bankruptcy, insolvency or similar law resulting in the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or other similar official) of the Corporation or of any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, and any such decree or order shall be unstayed and in effect for
a period of 60 consecutive days and, on account of any such event, the
Corporation shall liquidate, dissolve or wind up, or if the Corporation shall
otherwise liquidate, dissolve or wind up, including, but not limited to, the
sale or transfer of all or substantially all of the Corporation's assets in
one transaction or in a series of related transactions (a "Liquidation
Event"), no distribution shall be made to the holders of any shares of capital
stock of the Corporation (other than Senior Securities and Pari Passu
Securities) upon liquidation, dissolution or winding up unless prior thereto
the holders of shares of Series D Preferred Stock shall have received the
Liquidation Preference with respect to each share. If, upon the occurrence of
a Liquidation Event, the assets and funds available for distribution among the
holders of the Series D Preferred Stock and holders of Pari Passu Securities
shall be insufficient to permit the payment to such holders of the
preferential amounts payable thereon, then the entire assets and funds of the
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Corporation legally available for distribution to the Series D Preferred Stock
and the Pari Passu Securities shall be distributed ratably among such shares
in proportion to the ratio that the Liquidation Preference payable on each
such share bears to the aggregate Liquidation Preference payable on all such
shares.
B. The purchase or redemption by the Corporation of stock of any class,
in any manner permitted by law, shall not, for the purposes hereof, be
regarded as a liquidation, dissolution or winding up of the Corporation.
Neither the consolidation or merger of the Corporation with or into any other
entity nor the sale or transfer by the Corporation of less than substantially
all of its assets shall, for the purposes hereof, be deemed to be a
liquidation, dissolution or winding up of the Corporation.
C. The "Liquidation Preference" with respect to a share of Series D
Preferred Stock means an amount equal to the Stated Value thereof, plus the
accrued Premium thereon through the date of final distribution. The
Liquidation Preference with respect to any Pari Passu Securities shall be as
set forth in the Statement of Designation filed in respect thereof.
XI. ADJUSTMENTS TO THE CONVERSION PRICE
The Conversion Price shall be subject to adjustment from time to time as
follows:
A. Stock Splits, Stock Dividends, Etc. If, at any time on or after the
Initial Issuance Date, the number of outstanding shares of Common Stock is
increased by a stock split, stock dividend, combination, reclassification or
other similar event, the Fixed Conversion Price shall be proportionately
reduced, or if the number of outstanding shares of Common Stock is decreased
by a reverse stock split, combination or reclassification of shares, or other
similar event, the Fixed Conversion Price shall be proportionately increased.
In such event, the Corporation shall notify the Corporation's transfer agent
of such change on or before the effective date thereof.
B. Adjustment Due to Merger, Consolidation, Etc. If, at any time after
the Initial Issuance Date, there shall be (i) any reclassification or change
of the outstanding shares of Common Stock (other than a change in par value,
or from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination), (ii) any consolidation or merger of
the Corporation with any other entity (other than a merger in which the
Corporation is the surviving or continuing entity and its capital stock is
unchanged), (iii) any sale or transfer of all or substantially all of the
assets of the Corporation or (iv) any share exchange pursuant to which all of
the outstanding shares of Common Stock are converted into other securities or
property (each of (i) - (iv) above being a "Corporate Change"), then the
holders of Series D Preferred Stock shall thereafter have the right to receive
upon conversion, in lieu of the shares of Common Stock otherwise issuable,
such shares of stock, securities and/or other property as would have been
issued or payable in such Corporate Change with respect to or in exchange for
the number of shares of Common Stock which would have been issuable upon
conversion (without giving effect to the limitations contained in Article
IV.C) had such Corporate Change not taken place, and in any such case,
appropriate provisions (in form and substance reasonably satisfactory to the
holders of a majority of the Series D Preferred Shares then outstanding) shall
be made with respect to the rights and interests of the holders of the Series
D Preferred Stock to the end that the economic value of the shares of Series D
Preferred Stock are in no way diminished by such Corporate Change and that the
provisions hereof (including, without limitation, in the case of any such
consolidation, merger or sale in which the successor entity or purchasing
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entity is not the Corporation, an immediate adjustment of the Fixed
Conversion Price so that the Fixed Conversion Price immediately after the
Corporate Change reflects the same relative value as compared to the value of
the surviving entity's common stock that existed between the Fixed Conversion
Price and the value of the Corporation's Common Stock immediately prior to
such Corporate Change and an immediate revision to the Variable Conversion
Price so that it is determined as provided in Article III.H but based on the
price of the common stock of the surviving entity and the market in which such
common stock is traded) shall thereafter be applicable, as nearly as may be
practicable in relation to any shares of stock or securities thereafter
deliverable upon the conversion thereof. The Corporation shall not effect any
Corporate Change unless (i) each holder of Series D Preferred Stock has
received written notice of such transaction along with the notice sent to the
holders of the Common Stock of the Corporation, but in no event later than 20
days prior to the record date for the determination of shareholders entitled
to vote with respect thereto, and (ii) the resulting, successor or acquiring
entity (if not the Corporation) assumes by written instrument (in form and
substance reasonably satisfactory to the holders of a majority of the Series D
Preferred Shares then outstanding) the obligations of this Statement of
Designation. The above provisions shall apply regardless of whether or not
there would have been a sufficient number of shares of Common Stock authorized
and available for issuance upon conversion of the shares of Series D Preferred
Stock outstanding as of the date of such transaction, and shall similarly
apply to successive reclassifications, consolidations, mergers, sales,
transfers or share exchanges.
C. Adjustment Due to Major Announcement. In the event the Corporation
at any time after the Initial Issuance Date (i) makes a public announcement
that it intends to consolidate or merge with any other entity (other than a
merger in which the Corporation is the surviving or continuing entity and its
capital stock is unchanged) or to sell or transfer all or substantially all of
the assets of the Corporation or (ii) any person, group or entity (including
the Corporation) publicly announces a tender offer, exchange offer or another
transaction to purchase 50% or more of the Corporation's Common Stock or
otherwise publicly announces an intention to replace a majority of the
Corporation's Board of Directors by waging or proxy battle or otherwise (the
date of the announcement or commencement referred to in clause (i) or (ii) of
this Paragraph C is hereinafter referred to as the "Announcement Date"), then
the Conversion Price shall, effective upon the Announcement Date and
continuing through the tenth trading day following the earlier of the
consummation of the proposed transaction or tender offer, exchange offer or
another transaction or the Abandonment Date (as defined below) (the earlier of
such dates being the "Adjusted Conversion Price Termination Date"), be equal
to the lower of (x) the Conversion Price which would have been applicable for
a Conversion occurring on the Announcement Date and (y) the Conversion Price
determined in accordance with Article III.C on the Conversion Date set forth
in the Notice of Conversion for the Conversion. After the Adjusted Conversion
Price Termination Date, the Conversion Price shall be determined as set forth
in Article III.C. "Abandonment Date" means with respect to any proposed
transaction or tender offer, exchange offer or another transaction for which a
public announcement or an action contemplated by this Paragraph C has been
made or commenced, the date upon which the Corporation (in the case of clause
(i) above) or the person, group or entity (in the case of clause (ii) above)
publicly announces the termination or abandonment of the proposed transaction
or tender offer, exchange offer or another transaction which caused this
Paragraph C to become operative.
D. Adjustment Due to Distribution. If, at any time after the Initial
Issuance Date, the Corporation shall declare or make any distribution of its
assets (or rights to acquire its assets) to holders of Common Stock as a
partial liquidating dividend, by way of return of capital or otherwise
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(including any dividend or distribution to the Corporation's common
shareholders in shares (or rights to acquire shares) of capital stock of a
subsidiary (i.e. a spin-off)) (a "Distribution"), then the holders of Series D
Preferred Stock shall be entitled, upon any conversion of shares of Series D
Preferred Stock after the date of record for determining shareholders entitled
to such Distribution, to receive the amount of such assets which would have
been payable to the holder with respect to the shares of Common Stock issuable
upon such conversion (without giving effect to the limitations contained in
Article IV.C) had such holder been the holder of such shares of Common Stock
on the record date for the determination of shareholders entitled to such
Distribution.
E. Issuance of Other Securities. (i) If at any time after the Initial
Issuance Date the Corporation issues or sells or in accordance with Article
XI.E(ii) is deemed to have issued and sold any shares of Common Stock for no
consideration or for a consideration per share less than the Dilutive Price
(as defined in this subparagraph) on the date of issuance (a "Dilutive
Issuance"), then effective immediately upon the Dilutive Issuance, the
Conversion Price will be adjusted in accordance with the formula below. For
purposes of this subparagraph, "Dilutive Price" means the Market Price. The
Conversion Price will be adjusted in accordance with the following formula:
C' = C x O + P/M ;
CSDO
where:
C' = the adjusted Conversion Price;
C = the then current Conversion Price;
M = the then current Market Price;
O = the number of shares of Common Stock outstanding
immediately prior to the Dilutive Issuance;
P = the aggregate consideration, calculated as set forth
herein, received by the Corporation upon such Dilutive
Issuance; and
CSDO = the total number of shares of Common Stock deemed
outstanding immediately after the Dilutive Issuance.
(ii) Effect on Conversion Price of Certain Events. For purposes of
determining the adjusted Conversion Price under Article XI.E(i) hereof, the
following will be applicable:
(a) Issuance of Rights or Options. If the Corporation in any
manner issues or grants any warrants, rights or options, whether or not
immediately exercisable, to subscribe for or to purchase Common Stock or other
securities exercisable, convertible into or exchangeable for Common Stock
("Convertible Securities") (such warrants, rights and options to purchase
Common Stock or Convertible Securities are hereinafter referred to as
"Options") and the price per share for which Common Stock is issuable upon the
exercise of such Options is less than the Dilutive Price in effect on the date
of issuance of such Options ("Below Market Options"), then the maximum total
number of shares of Common Stock issuable upon the exercise of all such Below
Market Options (assuming full exercise, conversion or exchange of Convertible
Securities, if applicable) will, as of the date of the issuance or grant of
such Below Market Options, be deemed to be outstanding and to have been issued
and sold by the Corporation for such price per share. For purposes of the
preceding sentence, the "price per share for which Common Stock is issuable
upon the exercise of such Below Market Options" is determined by dividing (i)
the total amount, if any, received or receivable by the Corporation as
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consideration for the issuance or granting of all such Below Market Options,
plus the minimum aggregate amount of additional consideration, if any, payable
to the Corporation upon the exercise of all such Below Market Options, plus,
in the case of Convertible Securities issuable upon the exercise of such Below
Market Options, the minimum aggregate amount of additional consideration
payable upon the exercise, conversion or exchange thereof at the time such
Convertible Securities first become exercisable, convertible or exchangeable,
by (ii) the maximum total number of shares of Common Stock issuable upon the
exercise of all such Below Market Options (assuming full conversion of
Convertible Securities, if applicable). No further adjustment to the
Conversion Price will be made upon the actual issuance of such Common Stock
upon the exercise of such Below Market Options or upon the exercise,
conversion or exchange of Convertible Securities issuable upon exercise of
such Below Market Options.
(b) Issuance of Convertible Securities.
(A) If the Corporation in any manner issues or sells any
Convertible Securities, whether or not immediately convertible (other than
where the same are issuable upon the exercise of Options) and the price per
share for which Common Stock is issuable upon such exercise, conversion or
exchange (as determined pursuant to Article XI.E(ii)(b)(A) if applicable) is
less than the Dilutive Price in effect on the date of issuance of such
Convertible Securities, then the maximum total number of shares of Common
Stock issuable upon the exercise, conversion or exchange of all such
Convertible Securities will, as of the date of the issuance of such
Convertible Securities, be deemed to be outstanding and to have been issued
and sold by the Corporation for such price per share. For the purposes of the
preceding sentence, the "price per share for which Common Stock is issuable
upon such exercise, conversion or exchange" is determined by dividing (i) the
total amount, if any, received or receivable by the Corporation as
consideration for the issuance or sale of all such Convertible Securities,
plus the minimum aggregate amount of additional consideration, if any, payable
to the Corporation upon the exercise, conversion or exchange thereof at the
time such Convertible Securities first become exercisable, convertible or
exchangeable, by (ii) the maximum total number of shares of Common Stock
issuable upon the exercise, conversion or exchange of all such Convertible
Securities. No further adjustment to the Conversion Price will be made upon
the actual issuance of such Common Stock upon exercise, conversion or exchange
of such Convertible Securities.
(B) If the Corporation in any manner issues or sells any
Convertible Securities with a fluctuating conversion or exercise price or
exchange ratio (a "Variable Rate Convertible Security"), then the "price per
share for which Common Stock is issuable upon such exercise, conversion or
exchange" for purposes of the calculation contemplated by Section 4(b)(ii)(A)
shall be deemed to be the lowest price per share which would be applicable
(assuming all holding period and other conditions to any discounts contained
in such Convertible Security have been satisfied) if the Dilutive Price on the
date of issuance of such Convertible Security was 75% of the Dilutive Price on
such date (the "Assumed Variable Market Price"). Further, if the Dilutive
Price at any time or times thereafter is less than or equal to the Assumed
Variable Market Price last used for making any adjustment under this Section 4
with respect to any Variable Rate Convertible Security, the Conversion Price
in effect at such time shall be readjusted to equal the Conversion Price which
would have resulted if the Assumed Variable Market Price at the time of
issuance of the Variable Rate Convertible Security had been 75% of the
Dilutive Price existing at the time of the adjustment required by this
sentence.
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(c) Change in Option Price or Conversion Rate. If there is a
change at any time in (i) the amount of additional consideration payable to
the Corporation upon the exercise of any Options; (ii) the amount of
additional consideration, if any, payable to the Corporation upon the
exercise, conversion or exchange of any Convertible Securities; or (iii) the
rate at which any Convertible Securities are convertible into or exchangeable
for Common Stock (in each such case, other than under or by reason of
provisions designed to protect against dilution), the Conversion Price in
effect at the time of such change will be readjusted to the Conversion Price
which would have been in effect at such time had such Options or Convertible
Securities still outstanding provided for such changed additional
consideration or changed conversion rate, as the case may be, at the time
initially granted, issued or sold.
(d) Treatment of Expired Options and Unexercised Convertible
Securities. If, in any case, the total number of shares of Common Stock
issuable upon exercise of any Option or upon exercise, conversion or exchange
of any Convertible Securities is not, in fact, issued and the rights to
exercise such Option or to exercise, convert or exchange such Convertible
Securities shall have expired or terminated, the Conversion Price then in
effect will be readjusted to the Conversion Price which would have been in
effect at the time of such expiration or termination had such Option or
Convertible Securities, to the extent outstanding immediately prior to such
expiration or termination (other than in respect of the actual number of
shares of Common Stock issued upon exercise or conversion thereof), never been
issued.
(e) Calculation of Consideration Received. If any Common
Stock, Options or Convertible Securities are issued, granted or sold for cash,
the consideration received therefor for purposes hereof will be the amount
received by the Corporation therefor, before deduction of reasonable
commissions, underwriting discounts or allowances or other reasonable expenses
paid or incurred by the Corporation in connection with such issuance, grant or
sale. In case any Common Stock, Options or Convertible Securities are issued
or sold for a consideration part or all of which shall be other than cash, the
amount of the consideration other than cash received by the Corporation will
be the fair market value of such consideration, except where such
consideration consists of securities, in which case the amount of
consideration received by the Corporation will be the Market Price thereof as
of the date of receipt. In case any Common Stock, Options or Convertible
Securities are issued in connection with any merger or consolidation in which
the Corporation is the surviving corporation, the amount of consideration
therefor will be deemed to be the fair market value of such portion of the net
assets and business of the non-surviving corporation as is attributable to
such Common Stock, Options or Convertible Securities, as the case may be. The
fair market value of any consideration other than cash or securities will be
determined in good faith by an investment banker or other appropriate expert
of national reputation selected by the Corporation and reasonably acceptable
to the holder hereof, with the costs of such appraisal to be borne by the
Corporation. In case any Common Stock, Options or Convertible Securities are
issued in connection with the issuance of debt securities the amount of
consideration therefor shall be the cash received by the Corporation and the
value of the securities issued by the Corporation shall be the fair market
value of all securities and instruments issued in such transaction, with fair
market value being determined by agreement between the holder hereof and the
Corporation or if no such agreement is reached pursuant to the immediately
preceding sentence. For all Options and Warrants the fair market value
thereof shall be determined in accordance with the black shoals methodology.
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(f) Exceptions to Adjustment of Conversion Price. No
adjustment to the Conversion Price will be made (i) upon the exercise of any
warrants, options or convertible securities issued and outstanding on the
Issue Date and set forth on Schedule 3(d) of the Securities Purchase Agreement
in accordance with the terms of such securities as of such date or (ii) upon
the grant or exercise of any stock or options which may hereafter be granted
or exercised under any employee benefit plan of the Corporation now existing
or to be implemented in the future, so long as the issuance of such stock or
options is approved by a majority of the non-employee members of the Board of
Directors of the Corporation, if any, or a majority of the members of a
committee of non-employee directors established for such purpose; (iii) upon
the issuance of securities pursuant to an underwriters public offering; or
(iv) upon issuance of shares in connection with the acquisition of Prostar,
Inc.
F. Purchase Rights. If, at any time after the Initial Issuance Date,
the Corporation issues any securities which are convertible into or
exchangeable for Common Stock, or rights to purchase stock, warrants,
securities or other property (the "Purchase Rights") pro rata to the record
holders of any class of Common Stock, then the holders of Series D Preferred
Stock will be entitled to acquire, upon the terms applicable to such Purchase
Rights, the aggregate Purchase Rights which such holder could have acquired if
such holder had held the number of shares of Common Stock acquirable upon
complete conversion of the Series D Preferred Stock (without giving effect to
the limitations contained in Article IV.C) immediately before the date on
which a record is taken for the grant, issuance or sale of such Purchase
Rights, or, if no such record is taken, the date as of which the record
holders of Common Stock are to be determined for the grant, issue or sale of
such Purchase Rights.
G. Notice of Adjustments. Upon the occurrence of each adjustment or
readjustment of the Conversion Price pursuant to this Article XI, the
Corporation, at its expense, shall promptly compute such adjustment or
readjustment and prepare and furnish to each holder of Series D Preferred
Stock a certificate setting forth such adjustment or readjustment and showing
in detail the facts upon which such adjustment or readjustment is based. The
Corporation shall, upon the written request at any time of any holder of
Series D Preferred Stock, furnish to such holder a like certificate setting
forth (i) such adjustment or readjustment, (ii) the Conversion Price at the
time in effect and (iii) the number of shares of Common Stock and the amount,
if any, of other securities or property which at the time would be received
upon conversion of a share of Series D Preferred Stock.
XII. VOTING RIGHTS
The holders of the Series D Preferred Stock have no voting power
whatsoever, except as otherwise provided by the Colorado Business Corporation
Act (the "Business Corporation Act") and in Article XIII below.
Notwithstanding the above, the Corporation shall provide each holder of
Series D Preferred Stock with prior notification of any meeting of the
shareholders (and copies of proxy materials and other information sent to
shareholders) at the same time such notice and materials are provided to the
holders of Common Stock. If the Corporation takes a record of its
shareholders for the purpose of determining shareholders entitled to (a)
receive payment of any dividend or other distribution, any right to subscribe
for, purchase or otherwise acquire (including by way of merger consolidation
or recapitalization) any share of any class or any other securities or
property, or to receive any other right, or (b) to vote in connection with any
proposed sale, lease or conveyance of all or substantially all of the assets
20
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of the Corporation, or any proposed merger, consolidation, liquidation,
dissolution or winding up of the Corporation, the Corporation shall mail a
notice to each holder, at least 20 days prior to the record date specified
therein (but in no event earlier than public announcement of such proposed
transaction), of the date on which any such record is to be taken for the
purpose of such dividend, distribution, right or other event, and a brief
statement regarding the amount and character of such dividend, distribution,
right or other event to the extent known at such time.
To the extent that under the Business Corporation Act the vote of the
holders of the Series D Preferred Stock, voting separately as a class or
series, as applicable, is required to authorize a given action of the
Corporation, the affirmative vote or consent of the holders of at least a
majority of the then outstanding shares of the Series D Preferred Stock
represented at a duly held meeting at which a quorum is present or by written
consent of the holders of at least a majority of the then outstanding shares
of Series D Preferred Stock (except as otherwise may be required under the
Business Corporation Act) shall constitute the approval of such action by the
class. To the extent that under the Business Corporation Act holders of the
Series D Preferred Stock are entitled to vote on a matter with holders of
Common Stock, voting together as one class, each share of Series D Preferred
Stock shall be entitled to a number of votes equal to the number of shares of
Common Stock into which it is then convertible (subject to the limitations
contained in Article IV.C(ii)) using the record date for the taking of such
vote of shareholders as the date as of which the Conversion Price is
calculated.
XIII. PROTECTION PROVISIONS
So long as any shares of Series D Preferred Stock are outstanding, the
Corporation shall not without first obtaining the approval (by vote or written
consent, as provided by the Business Corporation Act) of a majority in
interest of the holders of the then outstanding shares of Series D Preferred
Stock:
(a) alter or change the rights, preferences or privileges of
the Series D Preferred Stock;
(b) alter or change the rights, preferences or privileges of
any previously issued shares of capital stock of the Corporation so as to
affect adversely the Series D Preferred Stock;
(c) create any new class or series of capital stock having a
preference over the Series D Preferred Stock as to distribution of assets upon
liquidation, dissolution or winding up of the Corporation (as previously
defined in Article IX hereof, "Senior Securities");
(d) create any new class or series of capital stock ranking
pari passu with the Series D Preferred Stock as to distribution of assets upon
liquidation, dissolution or winding up of the Corporation (as previously
defined in Article IX hereof, "Pari Passu Securities");
(e) increase the authorized number of shares of Series D
Preferred Stock;
(f) issue any shares of Senior Securities;
(g) issue any shares of Series D Preferred Stock other than
pursuant to the Securities Purchase Agreement;
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(h) redeem, or declare or pay any cash dividend or
distribution on, any Junior Securities; or
(i) increase the par value of the Common Stock.
Notwithstanding the foregoing, no change pursuant to this Article XIII shall
be effective to the extent that, by its terms, it applies to less than all of
the holders of shares of Series B Preferred Stock then outstanding.
XIV. MISCELLANEOUS
A. Cancellation of Series D Preferred Stock. If any shares of Series D
Preferred Stock are converted pursuant to Article IV, the shares so converted
shall be canceled, shall return to the status of authorized, but unissued
preferred stock of no designated series, and shall not be issuable by the
Corporation as Series D Preferred Stock.
B. Lost or Stolen Certificates. Upon receipt by the Corporation of (i)
evidence of the loss, theft, destruction or mutilation of any Preferred Stock
Certificate(s) and (ii) (y) in the case of loss, theft or destruction, of
indemnity (without any bond or other security) reasonably satisfactory to the
Corporation, or (z) in the case of mutilation, upon surrender and cancellation
of the Preferred Stock Certificate(s), the Corporation shall execute and
deliver new Preferred Stock Certificate(s) of like tenor and date. However,
the Corporation shall not be obligated to reissue such lost or stolen
Preferred Stock Certificate(s) if the holder contemporaneously requests the
Corporation to convert such Series D Preferred Stock.
C. Allocation of Cap Amount and Reserved Amount. The initial Cap Amount
and Reserved Amount shall be allocated pro rata among the holders of Series D
Preferred Stock based on the number of shares of Series D Preferred Stock
issued to each holder. Each increase to the Cap Amount and the Reserved
Amount shall be allocated pro rata among the holders of Series D Preferred
Stock based on the number of shares of Series D Preferred Stock held by each
holder at the time of the increase in the Cap Amount or Reserved Amount. In
the event a holder shall sell or otherwise transfer any of such holder's
shares of Series D Preferred Stock, each transferee shall be allocated a pro
rata portion of such transferor's Cap Amount and Reserved Amount. Any portion
of the Cap Amount or Reserved Amount which remains allocated to any person or
entity which does not hold any Series D Preferred Stock shall be allocated to
the remaining holders of shares of Series D Preferred Stock, pro rata based on
the number of shares of Series D Preferred Stock then held by such holders.
D. Quarterly Statements of Available Shares. For each calendar quarter
beginning in the quarter in which the initial registration statement required
to be filed pursuant to the Registration Rights Agreement is declared
effective and thereafter so long as any shares of Series D Preferred Stock are
outstanding, the Corporation shall deliver (or cause its transfer agent to
deliver) to each holder a written report notifying the holders of any
occurrence which prohibits the Corporation from issuing Common Stock upon any
such conversion. The report shall also specify (i) the total number of shares
of Series D Preferred Stock outstanding as of the end of such quarter, (ii)
the total number of shares of Common Stock issued upon all conversions of
Series D Preferred Stock prior to the end of such quarter, (iii) the total
number of shares of Common Stock which are reserved for issuance upon
conversion of the Series D Preferred Stock as of the end of such quarter and
(iv) the total number of shares of Common Stock which may thereafter be listed
or issued by the Corporation upon conversion of the Series D Preferred Stock
before the Corporation would exceed the Cap Amount and the Reserved Amount.
The Corporation (or its transfer agent) shall deliver the report for each
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quarter to each holder prior to the tenth day of the calendar month following
the quarter to which such report relates. In addition, the Corporation (or
its transfer agent) shall provide, within 15 days after delivery to the
Corporation of a written request by any holder, any of the information
enumerated in clauses (i) - (iv) of this Paragraph D as of the date of such
request.
E. Payment of Cash; Defaults. Whenever the Corporation is required to
make any cash payment to a holder under this Statement of Designation (upon
redemption or otherwise), such cash payment shall be made to the holder within
five business days after delivery by such holder of a notice specifying that
the holder elects to receive such payment in cash and the method (e.g., by
check, wire transfer) in which such payment should be made. If such payment
is not delivered within such five business day period, such holder shall
thereafter be entitled to interest on the unpaid amount at a per annum rate
equal to the lower of twenty-four percent (24%) and the highest interest rate
permitted by applicable law until such amount is paid in full to the holder.
F. Status as Stockholder. Upon submission of a Notice of Conversion by
a holder of Series D Preferred Stock, (i) the shares covered thereby (other
than the shares, if any, which cannot be issued because their listing or
issuance would exceed such holder's allocated portion of the Reserved Amount
or Cap Amount) shall be deemed converted into shares of Common Stock and (ii)
the holder's rights as a holder of such converted shares of Series D Preferred
Stock shall cease and terminate, excepting only the right to receive
certificates for such shares of Common Stock and to any remedies provided
herein or otherwise available at law or in equity to such holder because of a
failure by the Corporation to comply with the terms of this Statement of
Designation. Notwithstanding the foregoing, if a holder has not received
certificates for all shares of Common Stock prior to the tenth business day
after the expiration of the Delivery Period with respect to a conversion of
Series D Preferred Stock for any reason, then (unless the holder otherwise
elects to retain its status as a holder of Common Stock by so notifying the
Corporation within five business days after the expiration of such 10 business
day period) the holder shall regain the rights of a holder of Series D
Preferred Stock with respect to such unconverted shares of Series D Preferred
Stock and the Corporation shall, as soon as practicable, return such
unconverted shares to the holder. In all cases, the holder shall retain all
of its rights and remedies (including, without limitation, the right to have
the Conversion Price with respect to subsequent conversions determined in
accordance with Article VI.A) for the Corporation's failure to convert Series
D Preferred Stock.
G. Remedies Cumulative. The remedies provided in this Statement of
Designation shall be cumulative and in addition to all other remedies
available under this Statement of Designation, at law or in equity (including
a decree of specific performance and/or other injunctive relief), and nothing
herein shall limit a holder's right to pursue actual damages for any failure
by the Corporation to comply with the terms of this Statement of Designation.
The Corporation acknowledges that a breach by it of its obligations hereunder
will cause irreparable harm to the holders of Series D Preferred Stock and
that the remedy at law for any such breach may be inadequate. The Corporation
therefore agrees, in the event of any such breach or threatened breach, that
the holders of Series D Preferred Stock shall be entitled, in addition to all
other available remedies, to an injunction restraining any breach, without the
necessity of showing economic loss and without any bond or other security
being required.
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IN WITNESS WHEREOF, the undersigned Corporation has caused these Articles
of Amendment to the Articles of Incorporation to be signed by a duly
authorized officer and duly attested by another such officer, to be hereunto
affixed on this 10th day of September 1999.
U.S. TRUCKING, INC.
By:/s/ Danny Pixler
Name: Danny Pixler
Title: President
ATTEST:
/s/ Marion W. Huff
Marion W. Huff, Secretary
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NOTICE OF CONVERSION
(To be Executed by the Registered Holder
in order to Convert the Series D Preferred Stock)
The undersigned hereby irrevocably elects to convert ____________ shares of
Series D Preferred Stock (the "Conversion"), represented by stock certificate
Nos(s). ___________ (the "Preferred Stock Certificates"), into shares of
common stock ("Common Stock") of U.S. TRUCKING, INC. (the "Corporation")
according to the conditions of the Statement of Designation, Rights and
Preferences of the Series D Convertible Preferred Stock of U.S. Trucking, Inc.
(the "Statement of Designation"), as of the date written below. If securities
are to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto. No fee
will be charged to the holder for any conversion, except for transfer taxes,
if any. A copy of each Preferred Stock Certificate is attached hereto (or
evidence of loss, theft or destruction thereof).
The undersigned requests that the Corporation electronically transmit the
Common Stock issuable pursuant to this Notice of Conversion to the account of
the undersigned or its nominee (which is _________________) with DTC through
its Deposit Withdrawal Agent Commission System ("DTC Transfer").
The undersigned represents and warrants that all offers and sales by the
undersigned of the securities issuable to the undersigned upon conversion of
the Series D Preferred Stock shall be made pursuant to registration of the
Common Stock under the Securities Act of 1933, as amended (the "Act"), or
pursuant to an exemption from registration under the Act.
In lieu of receiving the shares of Common Stock issuable pursuant to
this Notice of Conversion by way of DTC Transfer, the undersigned hereby
requests that the Corporation issue and deliver to the undersigned physical
certificates representing such shares of Common Stock.
Date of Conversion:
Applicable Conversion Price:
Number of Shares of Common
Stock to be Issued:
Signature:
Name:
Address:_______________________________________
_______________________________________
_______________________________________
25
ARTICLES OF AMENDMENT TO
ARTICLES OF INCORPORATION
OF
U.S. TRUCKING, INC.
(SERIES E PREFERRED CONVERTIBLE STOCK)
FIRST:
That pursuant to authority expressly granted and vested in the Board of
Directors (the "Board of Directors" or the "Board") of this Corporation under
the Colorado Business Corporation Act and the provisions of the Articles of
Incorporation, the Board of Directors, on November 8, 1999, adopted the
following resolution setting forth the designations, powers, preferences and
rights of its Series E Convertible Preferred Stock (the "Statement of
Designation").
RESOLVED: That the designations, powers, preferences and rights of the Series
E Convertible Preferred Stock be, and they hereby are, as set forth below:
I. DESIGNATION AND AMOUNT
The designation of this series, which consists of 2,300 shares of
Preferred Stock, is the Series E Convertible Preferred Stock (the "Series E
Preferred Stock") and the stated value shall be One Thousand U.S. Dollars
($1,000.00) per share (the "Stated Value").
II. NO DIVIDENDS
The Series E Preferred Stock will bear no dividends, and the holders of
the Series E Preferred Stock shall not be entitled to receive dividends on the
Series E Preferred Stock.
III. CERTAIN DEFINITIONS
For purposes of this Statement of Designation, the following terms shall
have the following meanings:
A. "Closing Bid Price" means, for any security as of any date, the
closing bid price of such security on the over-the-counter market on the
electronic bulletin board (the "Bulletin Board") or principal securities
exchange or trading market where such security is listed or traded as reported
by Bloomberg Financial Markets or if Bloomberg Financial Markets is not then
reporting closing bid prices of such security a comparable reporting service
of national reputation selected by the Corporation and reasonably acceptable
to holders of a majority of the then outstanding shares of Series E Preferred
Stock (collectively, "Bloomberg"). If the foregoing does not apply, if no bid
price is reported for such security by Bloomberg, the average of the bid
prices of any market makers for such security as reported in the "pink sheets"
by the National Quotation Bureau, Inc. If the Closing Bid Price cannot be
calculated for such security on such date on any of the foregoing bases, the
Closing Bid Price of such security on such date shall be the fair market value
as reasonably determined by an investment banking firm selected by the
Corporation and reasonably acceptable to holders of a majority of the then
outstanding shares of Series E Preferred Stock, with the costs of such
appraisal to be borne by the Corporation.
<PAGE>
B. "Conversion Date" means, for any Conversion, the date on which the
notice of conversion in the form attached hereto (the "Notice of Conversion")
is delivered by fax, as evidenced by a mechanically or electronically
generated confirmation thereof, (or delivered by other means resulting in
notice) to the Corporation before 6:00 p.m., New York City time on the
Conversion Date indicated in the Notice of Conversion. The holder shall
confirm, by overnight courier, in person (by courier or otherwise) or by
telephone (to an authorized officer of the Corporation or his or her
administrative assistant), the delivery of the Notice of Conversion to the
Corporation on the date on which the Notice of Conversion is delivered or
before 9:00 a.m., New York City time on the trading day immediately succeeding
such date; provided that an overnight courier delivery which is signed for or
refused by the Corporation prior to 12:00 noon, New York City time on a given
day shall be deemed to have been delivered before 9:00 a.m. New York City time
on such day. If the Notice of Conversion is not so faxed or otherwise
delivered or the overnight courier, in-person or telephone confirmation is not
so made or deemed to be made before such applicable times, then the Conversion
Date shall be the date as of which both such conditions are satisfied (i.e.,
the Notice of Conversion is delivered on or before 6:00 p.m. New York City
time on a given day and the overnight courier, in-person or telephone
confirmation is made or deemed to be made either on such day of delivery or
before 9:00 a.m. New York City time on the immediately succeeding trading
day).
C. "Conversion Price" means the lower of the Fixed Conversion Price and
the Variable Conversion Price, each in effect as of such date and subject to
adjustment as provided herein.
D. "First Conversion Date" means, with respect to Series E Preferred
Stock issued on any Issue Date the earliest of (i) the 121st day following the
Initial Issuance Date, (ii) the date the Corporation makes a public
announcement that it intends to merge or consolidate with any other entity
(other than a merger in which the Corporation is the surviving or continuing
entity and the voting capital stock of the Corporation immediately prior to
such merger represents at least 50% of the voting power of the capital stock
of the Corporation after the merger) or to sell or transfer all or
substantially all of the assets of the Corporation, (iii) the date any person,
group or entity (including the Corporation) publicly announces a tender offer,
exchange offer or another transaction to purchase 50% or more of the
Corporation's outstanding Common Stock or otherwise publicly announces an
intention to replace a majority of the Corporation's Board of Directors by
waging proxy battle or otherwise, or (iv) the date on which a Redemption Event
described in Article VIII.A(iv) occurs.
E. "Fixed Conversion Price" means $3.18 and shall be subject to
adjustment as provided herein.
F. "Initial Issuance Date" means the date of the First Closing under that
certain Securities Purchase Agreement dated as of November 9, 1999 by and
among the Corporation and the other signatories thereto (the "Securities
Purchase Agreement").
G. "Issuance Date" means for each share of Series E Preferred Stock, the
date on which such share is first issued by the Corporation.
H. "Market Price," as of any date, (i) means the average of the closing
bid prices for the shares of the corporation's Common Stock, no par value per
share ("Common Stock") as reported on the Bulletin Board by Bloomberg for the
ten consecutive trading days immediately preceding such date, or (ii) if the
Bulletin Board is not the principal trading market for the shares of Common
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Stock, the average of the closing bid prices as reported by Bloomberg on the
principal trading market or exchange for the Common Stock during the same
period, or, if there is no sale price for such period, the last reported bid
price as reported by Bloomberg for such period, or (iii) if market value
cannot be calculated as of such date on any of the foregoing bases, the Market
Price shall be the average fair market value as reasonably determined by an
investment banking firm selected by the Corporation and reasonably acceptable
to the holder, with the costs of the appraisal to be borne by the Corporation.
The manner of determining the Market Price of the Common Stock set forth in
the foregoing definition shall apply with respect to any other security in
respect of which a determination as to market value must be made hereunder.
I. "N" means, with respect to each share of Series E Preferred Stock,
the number of days from, but excluding, the Issuance Date until the date
Premium is first redeemed in accordance with Article IV.D hereof on such share
and thereafter the number of days from and including the date on which Premium
was last redeemed in accordance with Article IV.D hereof until the date
Premium is next redeemed on such share.
J. "Premium" means an amount equal to (X)x(N/365) x (1,000), where "X"
means twelve hundredths (.12).
IV. CONVERSION; REDEMPTION OF PREMIUM
A. Conversion at the Option of the Holder. Subject to the limitations
on conversions contained in Paragraph C of this Article IV and to the
Corporation's right of redemption contained in Article VIII.D, each holder of
shares of Series E Preferred Stock may, at any time and from time to time on
or after the First Conversion Date, convert (a "Conversion") each of its
shares of Series E Preferred Stock into a number of fully paid and
nonassessable shares of Common Stock determined in accordance with the
following formula:
$1,000
Fixed Conversion Price
B. Mechanics of Conversion. In order to effect a Conversion, a holder
shall: (x) fax (or otherwise deliver) a copy of the fully executed Notice of
Conversion to the Corporation or the transfer agent for the Common Stock and
(y) surrender or cause to be surrendered the original certificates
representing the Series E Preferred Stock being converted (the "Preferred
Stock Certificates"), duly endorsed, along with a copy of the Notice of
Conversion as soon as practicable thereafter to the Corporation or the
transfer agent. The holder shall confirm by overnight courier, in person (by
courier or otherwise) or by telephone (to an authorized officer of the
Corporation or his or her administrative assistant), the delivery of the
Notice of Conversion to the Corporation on the date on which the Notice of
Conversion is delivered or before 9:00 a.m. New York City time on the trading
day immediately succeeding such date; provided that an overnight courier
delivery which is signed for or refused by the Corporation prior to 12:00
noon, New York City time on a given day shall be deemed to have been delivered
before 9:00 a.m. New York City time on such day. Upon receipt by the
Corporation of the Notice of Conversion by fax from a holder, the Corporation
shall, within one business day, following the later of the Corporation's
receipt of such Notice of Conversion and the holder's overnight courier,
in-person or telephone confirmation of the delivery of such Notice of
Conversion, send, via fax, a confirmation (the "Notice of Conversion
Confirmation") to such holder stating that the Notice of Conversion has been
received, the date upon which the Corporation expects to deliver the Common
Stock issuable upon such conversion, the name and telephone number of a
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<PAGE>
contact person at the Corporation regarding the conversion. The Corporation
shall not be obligated to issue shares of Common Stock upon a conversion
unless either the Preferred Stock Certificates are delivered to the
Corporation or the transfer agent as provided above, or the holder notifies
the Corporation or the transfer agent that such certificates have been lost,
stolen or destroyed and delivers the documentation to the Corporation required
by Article XIV.B hereof.
(i) Delivery of Common Stock Upon Conversion. Upon the surrender
of Preferred Stock Certificates from a holder of Series E Preferred Stock
accompanied by a Notice of Conversion, the Corporation shall, subject to the
Corporation's redemption rights set forth in Article VIII.D, no later than the
later of (a) the third business day following the Conversion Date and (b) the
business day following the date of such surrender (or, in the case of lost,
stolen or destroyed certificates, after provision of documentation pursuant
to Article XIV.B) (the "Delivery Period"), issue and deliver to the holder or
its nominee, after registration of the resale of such shares under the
Securities Act of 1933, as amended (the "Securities Act"), or delivery of
documentation reasonably satisfactory to the Corporation that the registration
of such shares is not required, to such holder's nominee, (x) that number of
shares of Common Stock issuable upon conversion of such shares of Series E
Preferred Stock being converted and (y) a certificate representing the number
of shares of Series E Preferred Stock not being converted, if any. If the
Corporation's transfer agent is participating in the Depository Trust
Corporation ("DTC") Fast Automated Securities Transfer program, and so long as
the certificates therefor do not bear a legend and the holder thereof is not
then required to return such certificate for the placement of a legend
thereon, the Corporation may cause its transfer agent to electronically
transmit the Common Stock issuable upon conversion to the holder by crediting
the account of the holder or its nominee with DTC through its Deposit
Withdrawal Agent Commission system ("DTC Transfer"). If the aforementioned
conditions to a DTC Transfer are not satisfied or a DTC Transfer is otherwise
not effected, the Corporation shall deliver to the holder physical
certificates representing the Common Stock issuable upon conversion. Further,
a holder may instruct the Corporation to deliver to the holder physical
certificates representing the Common Stock issuable upon conversion in lieu of
delivering such shares by way of DTC Transfer.
(ii) Taxes. The Corporation shall pay any and all taxes which may
be imposed upon the Corporation with respect to the issuance and delivery of
the shares of Common Stock upon the conversion of the Series E Preferred Stock
other than transfer taxes due upon conversion, if such holder has transferred
to another party the Series E Preferred Stock or the right to receive Common
Stock upon the holder's conversion thereof.
(iii) No Fractional Shares. If any conversion of Series E
Preferred Stock would result in the issuance of a fractional share of Common
Stock, such fractional share shall be disregarded and the number of shares of
Common Stock issuable upon conversion of the Series E Preferred Stock shall be
rounded up or down to the nearest whole share, it being understood that .5 of
one share shall be rounded up to the next highest share.
(iv) Conversion Disputes. In the case of any dispute with respect
to a conversion, the Corporation shall promptly issue such number of shares of
Common Stock as are not disputed in accordance with subparagraph (i) above.
If such dispute involves the calculation of the Conversion Price, the
Corporation shall submit the disputed calculations to the Corporation's
outside auditors reasonably acceptable to the holder of Series E Preferred
Stock being converted via facsimile at any time prior to the expiration of the
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<PAGE>
Delivery Period. The accountant, at the Corporation's expense, shall audit the
calculations and notify the Corporation and the holder of the results as soon
as practicable following the date it receives the disputed calculations. The
accountant's calculation shall be deemed conclusive, absent manifest error.
The Corporation shall then issue the appropriate number of shares of Common
Stock in accordance with subparagraph (i) above.
C. Limitations on Conversions. The conversion of shares of Series E
Preferred Stock shall be subject to the following limitations (each of which
limitations shall be applied independently):
(i) Cap Amount. If, notwithstanding the representations and
warranties of the Corporation contained in the Securities Purchase Agreement,
the Corporation is prohibited by the rules or regulations of any securities
exchange or quotation system on which the Common Stock is then listed or
traded, from listing or issuing a number of shares of Common Stock in excess
of a prescribed amount (the "Cap Amount") without the approval of the
Corporation's shareholders, then the Corporation shall not be required to list
or issue, as applicable, shares in excess of the Cap Amount unless the
Corporation has obtained the required approvals. The Cap Amount shall be
allocated pro rata to the holders of Series E Preferred Stock as provided in
Article XIV.C. In the event a holder of Series E Preferred Stock submits a
Notice of Conversion and the Corporation is prohibited from listing or issuing
shares of Common Stock to satisfy such Notice of Conversion as a result of the
operation of this subparagraph (i), such holder shall be entitled to the
rights set forth in Article VII hereof.
(ii) No Five Percent Holders. Unless a holder of shares of Series E
Preferred Stock delivers a waiver in accordance with the last sentence of this
subparagraph (ii), in no event shall a holder of shares of Series E Preferred
Stock be entitled to receive shares of Common Stock upon a conversion to the
extent that the sum of (x) the number of shares of Common Stock beneficially
owned by the holder and its affiliates (exclusive of shares issuable upon
conversion of the unconverted portion of the shares of Series E Preferred
Stock or the unexercised or unconverted portion of any other securities of the
Corporation (including, without limitation, the warrants (the "Warrants")
issued by the Corporation pursuant to the Securities Purchase Agreements)
subject to a limitation on conversion or exercise analogous to the limitations
contained herein) and (y) the number of shares of Common Stock issuable upon
the conversion of the shares of Series E Preferred Stock with respect to which
the determination of this subparagraph is being made, would result in
beneficial ownership by the holder and its affiliates of more than 4.99% of
the outstanding shares of Common Stock. For purposes of this subparagraph,
beneficial ownership shall be determined in accordance with Section 13(d) of
the Securities Exchange Act of 1934, as amended, and Regulation 13 D-G
thereunder, except as otherwise provided in clause (x) above. Except as
provided in the immediately succeeding sentence, the restriction contained in
this subparagraph (ii) shall not be altered, amended, deleted or changed in
any manner whatsoever unless the holders of a majority of the outstanding
shares of Common Stock and each holder of outstanding shares of Series E
Preferred Stock shall approve such alteration, amendment, deletion or change.
Notwithstanding the foregoing, a holder of shares of Series E Preferred Stock
may, by providing written notice to the Corporation, (x) adjust the
restriction set forth in this subparagraph (ii) so that the limitations on
beneficial ownership of 4.99% of the outstanding shares of Common Stock
referred to above shall not be applicable to such holder, which adjustment
shall not take effect until the 61st day after the date of such notice and (y)
irrevocably waive the right to deliver a waiver in accordance with clause (x)
of this sentence.
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<PAGE>
(iii) Percentage Limits on Conversion. Notwithstanding anything to
the contrary contained herein, no holder of shares of Series E Preferred Stock
may, without the prior written consent of the Corporation, on any one trading
day convert into shares of Common Stock a number of shares of Series E
Preferred Stock in excess of ten percent (10%) of the aggregate number of
shares of Series E Preferred Stock purchased by such holder from the
Corporation.
D. Redemption of Premium. The Corporation shall, on the fifteenth
(15th) day of each calendar month, redeem in cash any and all accrued and
unpaid Premium as of such date. All such redemption payments hereunder shall
be paid in lawful money of the United States of America at such address for
the holder as appears on the record books of the Corporation (or at such other
address as such holder shall hereafter give to the Corporation by written
notice).
V. RESERVATION OF SHARES OF COMMON STOCK
A. Reserved Amount. On the Issuance Date of shares of Series E
Preferred Stock, the Corporation shall reserve the number of shares which
would be issuable if the outstanding shares of Series E Preferred Stock were
converted in their entirety on the such Issuance Date based on the Conversion
Price in effect on such Issuance Date of the authorized but unissued shares of
Common Stock for issuance upon conversion of the Series E Preferred Stock and
thereafter the number of authorized but unissued shares of Common Stock so
reserved (the "Reserved Amount") shall not be decreased and shall at all times
be sufficient to provide for the conversion of the Series E Preferred Stock
outstanding at the then current Conversion Price thereof. The Reserved Amount
shall be allocated to the holders of Series E Preferred Stock as provided in
Article XIV.C.
B. Increases to Reserved Amount. If the Reserved Amount for any three
consecutive trading days (the last of such three trading days being the
"Authorization Trigger Date") shall be less than 100% of the number of shares
of Common Stock issuable upon conversion of the then outstanding shares of
Series E Preferred Stock, the Corporation shall immediately notify the holders
of Series E Preferred Stock of such occurrence and shall take immediate action
(including, if necessary, seeking shareholder approval to authorize the
issuance of additional shares of Common Stock) to increase the Reserved Amount
to 100% of the number of shares of Common Stock then issuable upon conversion
of the outstanding Series E Preferred Stock. In the event the Corporation
fails to so increase the Reserved Amount within 90 days after an Authorization
Trigger Date (such event being the "Reserved Amount Trigger Event"), each
holder of Series E Preferred Stock shall thereafter have the option,
exercisable in whole or in part at any time and from time to time by delivery
of a Redemption Notice (as defined in Article VIII.C) to the Corporation, to
require the Corporation to purchase for cash, at an amount per share equal to
the Redemption Amount (as defined in Article VIII.B), a portion of the
holder's Series E Preferred Stock such that, after giving effect to such
purchase, the holder's allocated portion of the Reserved Amount exceeds 100%
of the total number of shares of Common Stock issuable to such holder upon
conversion of its Series E Preferred Stock. If the Corporation fails to
redeem any of such shares within five (5) business days after its receipt of
such Redemption Notice, then such holder shall be entitled to the remedies
provided in Article VIII.C.
C. Adjustment to Conversion Price. If the Corporation is prohibited, at
any time, from issuing shares of Common Stock upon conversion of Series E
Preferred Stock to any holder because the Corporation does not then have
available a sufficient number of authorized and reserved shares of Common
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Stock, then the Fixed Conversion Price in respect of any shares of Series E
Preferred Stock held by any holder (including shares of Series E Preferred
Stock submitted to the Corporation for conversion, but for which shares of
Common Stock have not been issued to any such holder) shall be adjusted as
provided in Article VI.A.
D. Limitations on Redemption Right. Notwithstanding the provisions of
Paragraph B of this Article V, the holders of Series E Preferred Stock shall
have no right to require the Corporation to effect a redemption of their
outstanding shares of Series E Preferred Stock as provided in Paragraph B of
this Article V so long as (i) the Corporation has not, at any time, decreased
the Reserved Amount below that number of shares of Common Stock computed as
set forth in Article V.A.; (ii) the Corporation shall have taken immediate
action following the applicable Authorization Trigger Date (including, if
necessary, seeking stockholder approval to authorize the issuance of
additional shares of Common Stock) to increase the Reserved Amount to 200% of
the number of shares of Common Stock then issuable upon conversion of the
outstanding Series E Preferred Stock; and (iii) the Corporation continues to
use all commercially reasonable good faith best efforts (including the
resolicitation of stockholder approval to authorize the issuance of additional
shares of Common Stock) to increase the Reserved Amount to 200% of the number
of shares of Common Stock then issuable upon conversion of the outstanding
Series E Preferred Stock. The Corporation will be deemed to be using "all
commercially reasonable good faith best efforts" to increase the Reserved
Amount so long as it solicits stockholder approval to authorize the issuance
of additional shares of Common Stock not less than three (3) times during each
twelve month period following the applicable Authorization Trigger Date during
which any shares of Series B Preferred Stock remain outstanding.
VI. FAILURE TO SATISFY CONVERSIONS
A. Conversion Defaults. The following shall constitute a "Conversion
Default": (i) following the submission by a holder of shares of Series E
Preferred Stock of a Notice of Conversion, the Corporation fails for any
reason (other than because of an event described in clause (iii) below) to
deliver, on or prior to the tenth business day following the expiration of the
Delivery Period for such conversion, such number of shares of Common Stock
without a restrictive legend covered by an effective registration statement to
which such holder is entitled upon such conversion, (ii) the Corporation
provides notice to any holder of Series E Preferred Stock at any time of its
intention not to issue freely tradeable shares of Common Stock upon exercise
by any holder of its conversion rights in accordance with the terms of this
Statement of Designation (other than because of an event described in clause
(iii) below), or (iii) the Corporation is prohibited, at any time, from
listing shares of Common Stock or from issuing shares of Common Stock upon
conversion of Series E Preferred Stock to any holder because the Corporation
(A) does not at the date of such conversion have available a sufficient number
of authorized and reserved shares of Common Stock or (B) such listing or
issuance would exceed the then unissued portion of such holder's Cap Amount.
In the case of a Conversion Default described in clause (i) or (iii) above,
the Fixed Conversion Price in respect of any shares of Series E Preferred
Stock held by such holder (including shares of Series E Preferred Stock
submitted to the Corporation for conversion, but for which shares of Common
Stock have not been issued to such holder) shall thereafter be the lesser of
(x) the Fixed Conversion Price on the date of the Conversion Default and (y)
the lowest Conversion Price in effect during the period beginning on, and
including, such date through and including (A) in the case of a Conversion
Default referred to in clause (i) above, the earlier of (1) the day such
shares of Common Stock are delivered to the holder and (2) the day on which
the holder regains its rights as a holder of Series E Preferred Stock with
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respect to such unconverted shares of Series E Preferred Stock pursuant to the
provisions of Article XIV.F hereof, and (B) in the case of a Conversion
Default referred to in clause (iii) above, the date on which the prohibition
on listing or issuance of Common Stock terminates. In the case of a
Conversion Default described in clause (ii) above, the Fixed Conversion Price
with respect to any conversion thereafter shall be the lowest Conversion Price
in effect at any time during the period beginning on, and including, the date
of the occurrence of such Conversion Default through and including the Default
Cure Date (as defined below). Following any adjustment to the Fixed
Conversion Price pursuant to this Article VI.A, the Fixed Conversion Price
shall thereafter be subject to further adjustment for any events described in
Article XI. Upon the occurrence of each reset of the Fixed Conversion Price
pursuant to this Paragraph A, the Corporation, at its expense, shall promptly
compute the new Fixed Conversion Price and prepare and furnish to each holder
of Series E Preferred Stock a certificate setting forth such new Fixed
Conversion Price and showing in detail each Conversion Price in effect during
such reset period.
"Default Cure Date" means (i) with respect to a Conversion Default
described in clause (i) of its definition, the date the Corporation effects
the conversion of the full number of shares of Series E Preferred Stock, (ii)
with respect to a Conversion Default described in clause (ii) of its
definition, the date the Corporation issues shares of Common Stock without a
restrictive legend covered by an effective registration statement in
satisfaction of all conversions of Series E Preferred Stock in accordance with
Article IV.A, and (iii) with respect to a Conversion Default described in
clause (i) or clause (ii) of its definition, the date on which the Corporation
redeems shares of Series E Preferred Stock held by such holder pursuant to
paragraph C of this Article VI.
B. Intentionally Omitted.
C. Redemption Right. If the Corporation fails, and such failure
continues uncured for five (5) business days after the Corporation has been
notified thereof in writing by the holder, for any reason (other than because
such issuance would exceed such holder's allocated portion of the Reserved
Amount or Cap Amount, for which failures the holders shall have the remedies
set forth in Articles V and VII, respectively) to issue shares of Common Stock
within 10 business days after the expiration of the Delivery Period with
respect to any conversion of Series E Preferred Stock, then the holder may
elect at any time and from time to time prior to the Default Cure Date for
such Conversion Default, by delivery of a Redemption Notice to the
Corporation, to have all of such holder's shares of Series E Preferred Stock
which were submitted for conversion purchased by the Corporation for cash, at
an amount per share equal to the Redemption Amount (as defined in Article
VIII.B). If the Corporation fails to redeem any of such shares within five
business days after its receipt of such Redemption Notice, then such holder
shall be entitled to the remedies provided in Article VIII.C.
D. Void Notice of Conversion. If for any reason a holder has not
received all of the shares of Common Stock prior to the tenth (10th) business
day after the expiration of the Delivery Period with respect to a conversion
of Series E Preferred Stock and such shares are not subject to a redemption
notice from the holder thereof, then the holder, upon written notice to the
Corporation's transfer agent, with a copy to the Corporation, may void its
Notice of Conversion with respect to, and retain or have returned, as the case
may be, any shares of Series E Preferred Stock that have not been converted
pursuant to such holder's Notice of Conversion; provided that the voiding of a
holder's Notice of Conversion shall not affect such holders rights and
remedies which have accrued prior to the date of such notice pursuant to
Article VI hereof or otherwise.
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VII. INABILITY TO LIST OR CONVERT DUE TO CAP AMOUNT
A. Obligation to Cure. If at any time after November 9, 1999 the then
unissued portion of any holder's Cap Amount is less than 100% of the number of
shares of Common Stock then issuable upon conversion of such holder's shares
of Series E Preferred Stock (a "Trading Market Trigger Event"), the
Corporation shall immediately notify the holders of Series E Preferred Stock
of such occurrence and shall take immediate action (including, if necessary,
seeking the approval of its shareholders to authorize the listing or issuance
of the full number of shares of Common Stock which would be issuable upon the
conversion of the then outstanding shares of Series E Preferred Stock but for
the Cap Amount) to eliminate any prohibitions under applicable law or the
rules or regulations of any stock exchange, interdealer quotation system or
other self-regulatory organization with jurisdiction over the Corporation or
any of its securities on the Corporation's ability to list or issue shares of
Common Stock in excess of the Cap Amount ("Trading Market Prohibitions"). In
the event the Corporation fails to eliminate all such Trading Market
Prohibitions within 120 days after the Trading Market Trigger Event, then each
holder of Series E Preferred Stock shall thereafter have the option,
exercisable in whole or in part at any time and from time to time until such
date that all such Trading Market Prohibitions are eliminated, by delivery of
a Redemption Notice (as defined in Article VIII.C) to the Corporation, to
require the Corporation to purchase for cash, at an amount per share equal to
the Redemption Amount, a number of the holder's shares of Series E Preferred
Stock such that, after giving effect to such redemption, the then unissued
portion of such holder's Cap Amount exceeds 100% of the total number of shares
of Common Stock issuable upon conversion of such holder's shares of Series E
Preferred Stock. If the Corporation fails to redeem any of such shares within
five (5) business days after its receipt of such Redemption Notice, then such
holder shall be entitled to the remedies provided in Articles VII.B and
VIII.C.
B. Remedies. If the Corporation fails to redeem any shares of Series E
Preferred Stock pursuant to Article VII.A within five business days after its
receipt of such Redemption Notice, and thereafter the Corporation is
prohibited, at any time, from listing shares of Common Stock or from issuing
shares of Common Stock upon conversion of Series E Preferred Stock to any
holder because such listing or issuance would exceed the then unissued portion
of such holder's Cap Amount because of applicable law or the rules or
regulations of any stock exchange, interdealer quotation system or other
self-regulatory organization with jurisdiction over the Corporation or its
securities, any holder who is so prohibited from converting its Series E
Preferred Stock because the shares of Common Stock underlying such Series E
Preferred Stock may not be listed or issued, may elect either or both of the
following additional remedies:
(i) to require, with the consent of holders of at least fifty
percent (50%) of the outstanding shares of Series E Preferred Stock (including
any shares of Series E Preferred Stock held by the requesting holder), the
Corporation to terminate the trading of its Common Stock on the Bulletin Board
(or any other stock exchange, interdealer quotation system or trading market)
and to cause its Common Stock to be eligible for trading on the "pink sheets";
or
(ii) to require the Corporation to issue shares of Common Stock in
accordance with such holder's Notice of Conversion at a conversion price equal
to the average of the Closing Bid Prices for the Common Stock during the five
consecutive trading days ending on the trading day immediately preceding the
date of the holder's written notice to the Corporation of its election to
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receive shares of Common Stock pursuant to this subparagraph (ii) (subject to
equitable adjustment for any stock splits, stock dividends, reclassifications
or similar events during such five trading day period).
C. Adjustment to Conversion Price. If the Corporation is prohibited, at
any time, from listing shares of Common Stock or from issuing shares of Common
Stock upon conversion of Series E Preferred Stock to any holder because such
listing or issuance would exceed the then unissued portion of such holder's
Cap Amount because of applicable law or the rules or regulations of any stock
exchange, interdealer quotation system or other self-regulatory organization
with jurisdiction over the Corporation or its securities, then the Fixed
Conversion Price in respect of any shares of Series E Preferred Stock held by
any holder (including shares of Series E Preferred Stock submitted to the
Corporation for conversion, but for which shares of Common Stock have not been
issued) shall be adjusted as provided in Article VI.A.
VIII. REDEMPTION
A. Redemption by Holder. In the event (each of the events described in
clauses (i)-(vii) below after expiration of the applicable cure period (if
any) being a "Redemption Event"):
(i) the Common Stock (including, from and after the First
Conversion Date, any of the shares of Common Stock issuable upon conversion of
the Series E Preferred Stock) is suspended from trading on any of, or is not
listed (and authorized) for trading on at least one of, the Bulletin Board,
NASDAQ Small Cap Market, the NASDAQ National Market, the New York Stock
Exchange or the American Stock Exchange for an aggregate of 10 full trading
days in any nine month period;
(ii) the Corporation fails to remove any restrictive legend on any
certificate or any shares of Common Stock issued to the holders of Series E
Preferred Stock (a "Legend Removal Failure") upon conversion of the Series E
Preferred Stock as and when required by this Statement of Designation, the
Securities Purchase Agreement or that certain Registration Rights Agreement
(the "Registration Rights Agreement") by and among the Corporation and the
other signatories thereto entered into in connection with the Securities
Purchase Agreement and any such failure continues uncured for ten business
days after the Corporation has been notified thereof in writing by the holder;
(iii) the Corporation provides notice to any holder of Series E
Preferred Stock, including by way of public announcement, at any time, of its
intention not to issue, or otherwise refuses to issue, shares of Common Stock
to any holder of Series E Preferred Stock upon conversion in accordance with
the terms of this Statement of Designation (other than due to the
circumstances contemplated by Articles V or VII for which the holders shall
have the remedies set forth in such Articles);
(iv) the Corporation shall:
(a) sell, convey or dispose of all or substantially all of its
assets (the presentation of any such transaction for stockholder approval
being conclusive evidence that such transaction involves the sale of all or
substantially all of the assets of the Corporation); or
(b) merge, consolidate or engage in any other business
combination with any other entity (other than pursuant to a migratory merger
effected solely for the purpose of changing the jurisdiction of incorporation
of the Corporation and other than pursuant to a merger in which the
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Corporation is the surviving or continuing entity and the voting capital stock
of the Corporation immediately prior to such merger represents at least 50% of
the voting power of the capital stock of the Corporation after the merger) and
its capital stock is unchanged; or
(c) have fifty percent (50%) or more of the voting power of
its capital stock owned beneficially by one person, entity or "group" (as such
term is used under Section 13(d) of the Securities Exchange Act of 1934, as
amended), other than Logistics Management, LLC and its current affiliates;
(v) the Corporation otherwise shall breach any material term
hereunder or under the Securities Purchase Agreement or the Registration
Rights Agreement and such breach continues for 5 business days after the
Corporation has been notified thereof in writing by the holder; or
(vi) as of the last day of any Trading Volume Valuation Period
(defined below) and the Trading Volume Value (defined below) for such Trading
Volume Valuation Period shall not equal or exceed $150,000. The term "Trading
Volume Valuation Period" shall mean any twenty (20) consecutive trading day
period during the period beginning on the one hundred eightieth (180th) day
after the Initial Issuance Date and continuing thereafter. The term "Trading
Volume Value" shall mean, for any Trading Volume Valuation Period, the
average of the products obtained by multiplying (i) the Closing Bid Price for
the Common Stock on a trading day by (ii) the total actual number of shares of
Common Stock purchased on the Bulletin Board or the principal exchange or
market on which the Common Stock is traded on such trading day for each
trading day in such Trading Volume Valuation Period. Then, upon the
occurrence of any such Redemption Event, each holder of shares of Series E
Preferred Stock shall thereafter have the option, exercisable in whole or in
part at any time and from time to time by delivery of a Redemption Notice (as
defined in Paragraph C below) to the Corporation while such Redemption Event
continues, to require the Corporation to purchase for cash any or all of the
then outstanding shares of Series E Preferred Stock held by such holder for an
amount per share equal to the Redemption Amount (as defined in Paragraph B
below) in effect at the time of the redemption hereunder. For the avoidance
of doubt, the occurrence of any event described in clauses (i), (iii) or (iv)
above shall immediately constitute a Redemption Event and there shall be no
cure period. Upon the Corporation's receipt of any Redemption Notice
hereunder (other than during the three trading day period following the
Corporation's delivery of a Redemption Announcement (as defined below) to all
of the holders in response to the Corporation's initial receipt of a
Redemption Notice from a holder of Series E Preferred Stock), the Corporation
shall immediately (and in any event within one business day following such
receipt) deliver a written notice (a "Redemption Announcement") to all holders
of Series E Preferred Stock stating the date upon which the Corporation
received such Redemption Notice and the amount of Series E Preferred Stock
covered thereby. Subject to Article VIII.D, the Corporation shall not redeem
any shares of Series E Preferred Stock during the three trading day period
following the delivery of a required Redemption Announcement hereunder. At
any time and from time to time during such three trading day period, each
holder of Series E Preferred Stock may request (either orally or in writing)
information from the Corporation with respect to the instant redemption
(including, but not limited to, the aggregate number of shares of Series E
Preferred Stock covered by Redemption Notices received by the Corporation) and
the Corporation shall furnish (either orally or in writing) as soon as
practicable such requested information to such requesting holder.
Notwithstanding anything in this Article VIII.A to the contrary, the
holders of Series E Preferred Stock shall have no right to deliver a
Redemption Notice following the occurrence of a Redemption Event specified in
clause (i) above if the Corporation pays to each holder within five (5)
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business days after the occurrence of such Redemption Event and on each three
month anniversary thereafter, as liquidated damages for the decrease in the
value of the Series E Preferred Stock (and the shares of the Corporation's
Common Stock issuable upon conversion thereof) which will result from the
occurrence of such Redemption Event, an amount (the "Damages Amount") equal to
ten percent (10%) of the aggregate Stated Value of the shares of Series E
Preferred Stock then held by each such holder. The Damages Amount shall be
payable, at the Corporation's option, in cash or shares of Common Stock (based
upon a price per share of Common Stock equal to eighty percent (80%) of the
Variable Conversion Price in effect as of the date of such Redemption Event).
Notwithstanding anything in this Article VIII.A to the contrary, if the
holders of Series E Preferred Stock deliver a Redemption Notice following the
occurrence of a Redemption Event specified in clause (vi) above, the
Corporation may at its election in lieu of paying the Redemption Amount pay to
the holders of Series E Preferred Stock the Trading Value Redemption Amount
(as defined below). The "Trading Value Redemption Amount" with respect to a
share of Series E Preferred Stock means an amount equal to the Stated Value
hereof multiplied by 1.2 plus the accrued and unpaid Premium thereon through
the date of payment of the Trading Value Redemption Amount. Notwithstanding
anything in this Article VIII.A to the contrary, the Trading Value Redemption
Amount shall be payable, at the Corporation's option, in cash or shares of
Common Stock (based upon a price per share of Common Stock equal to eighty
percent (80%) of the Variable Conversion Price in effect as of the date of
such Redemption Event). If the Corporation elects to pay such amount in
shares of Common Stock such shares shall be issued not later than five (5)
business days after the date the Trading Value Redemption Amount becomes due
and such shares for all purposes shall constitute Registrable Securities (as
defined in the Registration Rights Agreement). If the Corporation elects to
pay such amount in cash, the Corporation shall pay such amount in twelve (12)
equal monthly installments plus interest on such amount at a per annum,
compounded rate of twelve percent (12%). Such interest will begin to accrue
and the first of such payments shall be made on the date the Trading Value
Redemption Amount becomes due. The Corporation shall have the right to prepay
any such cash amount.
B. Definition of Redemption Amount. The "Redemption Amount" with
respect to a share of Series E Preferred Stock means an amount equal to:
V x M
C P
where:
"V" means the Stated Value thereof, plus the accrued Premium thereon
through the date of payment of the Redemption Amount;
"CP" means the Conversion Price in effect on the date on which the
Corporation receives the Redemption Notice; and
"M" means the higher of (i) the highest Closing Bid Price of the
Corporation's Common Stock during the period beginning on the date on which
the Corporation receives the Redemption Notice and ending on the date
immediately preceding the date of payment of the Redemption Amount and (ii)
the fair market value, as of the date on which the Corporation receives the
Redemption Notice, of the consideration payable to the holder of a share of
Common Stock pursuant to the transaction which triggers the redemption. For
purposes of this definition, "fair market value" shall be determined by the
mutual agreement of the Corporation and holders of a majority-in-interest of
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the shares of Series E Preferred Stock then outstanding, or if such agreement
cannot be reached within five business days prior to the date of redemption,
by an investment banking firm selected by the Corporation and reasonably
acceptable to holders of a majority-in-interest of the then outstanding shares
of Series E Preferred Stock, with the costs of such appraisal to be borne by
the Corporation.
C. Redemption Defaults. If the Corporation fails to pay any holder the
Redemption Amount or Trading Value Redemption Amount with respect to any share
of Series E Preferred Stock within five business days after its receipt of a
notice requiring such redemption (a "Redemption Notice"), then the holder of
Series E Preferred Stock delivering such Redemption Notice (i) shall be
entitled to interest on the Redemption Amount at a per annum rate equal to the
lower of twenty-four percent (24%) and the highest interest rate permitted by
applicable law from the date on which the Corporation receives the Redemption
Notice until the date of payment of the Redemption Amount hereunder, and (ii)
shall have the right, at any time and from time to time, to require the
Corporation, upon written notice, to immediately convert (in accordance with
the terms of Paragraph A of Article IV) all or any portion of the Redemption
Amount, plus interest as aforesaid, into shares of Common Stock at the lowest
Conversion Price in effect during the period beginning on the date on which
the Corporation receives the Redemption Notice and ending on the Conversion
Date with respect to the conversion of such Redemption Amount. In the event
the Corporation is not able to redeem all of the shares of Series E Preferred
Stock subject to Redemption Notices delivered prior to the date upon which
such redemption is to be effected, the Corporation shall redeem shares of
Series E Preferred Stock from each holder pro rata, based on the total number
of shares of Series E Preferred Stock outstanding at the time of redemption
included by such holder in all Redemption Notices delivered prior to the date
upon which such redemption is to be effected relative to the total number of
shares of Series E Preferred Stock outstanding at the time of redemption
included in all of the Redemption Notices delivered prior to the date upon
which such redemption is to be effected.
D. Void Redemption. In the event that the Corporation does not pay the
Redemption Amount within the time period set forth in Article IV.D, Article
VIII.A or Article VIII.D, at any time thereafter and until the Corporation
pays such unpaid applicable Redemption Amount in full, a holder of Series E
Preferred Stock shall have the option (the "Void Optional Redemption Option")
to, in lieu of redemption, require the Corporation to promptly return to such
holder any or all of the shares of Series E Preferred Stock that were
submitted for redemption by such holder under this Article VIII and for which
the applicable Redemption Amount (together with any interest thereon) has not
been paid, by sending written notice thereof to the Corporation via facsimile
and confirmed by overnight courier, in person (by courier or otherwise) or by
telephone (to an authorized officer of the Corporation or his or her
administrative assistant) (the "Void Optional Redemption Notice"). Upon the
Corporation's receipt of such Void Optional Redemption Notice and overnight
courier, in-person or telephone confirmation, (i) the Notice of Redemption
shall be null and void with respect to those shares of Series E Preferred
Stock subject to the Void Optional Redemption Notice, and (ii) the Corporation
shall immediately return any shares of Series E Preferred Stock subject to the
Void Optional Redemption Notice
IX. RANK
The Series E Preferred Stock shall rank (i) prior to the Corporation's
Common Stock; (ii) prior to any class or series of capital stock of the
Corporation hereafter created that, by its terms, ranks junior to the Series E
Preferred Stock ("Junior Securities"); (iii) junior to the Series B Preferred
Stock and any class or series of capital stock of the Corporation hereafter
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created (with the consent of the holders of Series E Preferred Stock, obtained
in accordance with Article XIII hereof) specifically ranking, by its terms,
senior to the Series E Preferred Stock ("Senior Securities"); and (iv) pari
passu with the Series A Preferred Stock, Series B Preferred Stock and Series D
Preferred Stock of the Corporation and any other class or series of capital
stock of the Corporation hereafter created (with the consent of the holders of
the Series E Preferred Stock obtained in accordance with Article XIII hereof)
specifically ranking by its terms on parity with the Series E Preferred Stock
("Pari Passu Securities"), in each case as to distribution of assets upon
liquidation, dissolution or winding up of the Corporation, whether voluntary
or involuntary.
X. LIQUIDATION PREFERENCE
A. If the Corporation shall commence a voluntary case under the U.S.
Federal bankruptcy laws or any other applicable bankruptcy, insolvency or
similar law, or consent to the entry of an order for relief in an involuntary
case under any law or to the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or other similar official) of the
Corporation or of any substantial part of its property, or make an assignment
for the benefit of its creditors, or admit in writing its inability to pay its
debts generally as they become due, or if a decree or order for relief in
respect of the Corporation shall be entered by a court having jurisdiction in
the premises in an involuntary case under the U.S. Federal bankruptcy laws or
any other applicable bankruptcy, insolvency or similar law resulting in the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or other similar official) of the Corporation or of any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, and any such decree or order shall be unstayed and in effect for
a period of 60 consecutive days and, on account of any such event, the
Corporation shall liquidate, dissolve or wind up, or if the Corporation shall
otherwise liquidate, dissolve or wind up, including, but not limited to, the
sale or transfer of all or substantially all of the Corporation's assets in
one transaction or in a series of related transactions (a "Liquidation
Event"), no distribution shall be made to the holders of any shares of capital
stock of the Corporation (other than Senior Securities and Pari Passu
Securities) upon liquidation, dissolution or winding up unless prior thereto
the holders of shares of Series E Preferred Stock shall have received the
Liquidation Preference with respect to each share. If, upon the occurrence of
a Liquidation Event, the assets and funds available for distribution among the
holders of the Series E Preferred Stock and holders of Pari Passu Securities
shall be insufficient to permit the payment to such holders of the
preferential amounts payable thereon, then the entire assets and funds of the
Corporation legally available for distribution to the Series E Preferred Stock
and the Pari Passu Securities shall be distributed ratably among such shares
in proportion to the ratio that the Liquidation Preference payable on each
such share bears to the aggregate Liquidation Preference payable on all such
shares.
B. The purchase or redemption by the Corporation of stock of any class,
in any manner permitted by law, shall not, for the purposes hereof, be
regarded as a liquidation, dissolution or winding up of the Corporation.
Neither the consolidation or merger of the Corporation with or into any other
entity nor the sale or transfer by the Corporation of less than substantially
all of its assets shall, for the purposes hereof, be deemed to be a
liquidation, dissolution or winding up of the Corporation.
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C. The "Liquidation Preference" with respect to a share of Series E
Preferred Stock means an amount equal to the Stated Value thereof, plus the
accrued Premium thereon through the date of final distribution. The
Liquidation Preference with respect to any Pari Passu Securities shall be as
set forth in the Statement of Designation filed in respect thereof.
XI. ADJUSTMENTS TO THE CONVERSION PRICE
The Conversion Price shall be subject to adjustment from time to time as
follows:
A. Stock Splits, Stock Dividends, Etc. If, at any time on or after the
Initial Issuance Date, the number of outstanding shares of Common Stock is
increased by a stock split, stock dividend, combination, reclassification or
other similar event, the Fixed Conversion Price shall be proportionately
reduced, or if the number of outstanding shares of Common Stock is decreased
by a reverse stock split, combination or reclassification of shares, or other
similar event, the Fixed Conversion Price shall be proportionately increased.
In such event, the Corporation shall notify the Corporation's transfer agent
of such change on or before the effective date thereof.
B. Adjustment Due to Merger, Consolidation, Etc. If, at any time after
the Initial Issuance Date, there shall be (i) any reclassification or change
of the outstanding shares of Common Stock (other than a change in par value,
or from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination), (ii) any consolidation or merger of
the Corporation with any other entity (other than a merger in which the
Corporation is the surviving or continuing entity and its capital stock is
unchanged), (iii) any sale or transfer of all or substantially all of the
assets of the Corporation or (iv) any share exchange pursuant to which all of
the outstanding shares of Common Stock are converted into other securities or
property (each of (i) - (iv) above being a "Corporate Change"), then the
holders of Series E Preferred Stock shall thereafter have the right to receive
upon conversion, in lieu of the shares of Common Stock otherwise issuable,
such shares of stock, securities and/or other property as would have been
issued or payable in such Corporate Change with respect to or in exchange for
the number of shares of Common Stock which would have been issuable upon
conversion (without giving effect to the limitations contained in Article
IV.C) had such Corporate Change not taken place, and in any such case,
appropriate provisions (in form and substance reasonably satisfactory to the
holders of a majority of the Series E Preferred Shares then outstanding) shall
be made with respect to the rights and interests of the holders of the Series
E Preferred Stock to the end that the economic value of the shares of Series E
Preferred Stock are in no way diminished by such Corporate Change and that the
provisions hereof (including, without limitation, in the case of any such
consolidation, merger or sale in which the successor entity or purchasing
entity is not the Corporation, an immediate adjustment of the Fixed Conversion
Price so that the Fixed Conversion Price immediately after the Corporate
Change reflects the same relative value as compared to the value of the
surviving entity's common stock that existed between the Fixed Conversion
Price and the value of the Corporation's Common Stock immediately prior to
such Corporate Change and an immediate revision to the Variable Conversion
Price so that it is determined as provided in Article III.H but based on the
price of the common stock of the surviving entity and the market in which such
common stock is traded) shall thereafter be applicable, as nearly as may be
practicable in relation to any shares of stock or securities thereafter
deliverable upon the conversion thereof. The Corporation shall not effect any
Corporate Change unless (i) each holder of Series E Preferred Stock has
received written notice of such transaction along with the notice sent to the
holders of the Common Stock of the Corporation, but in no event later than 20
15
<PAGE>
days prior to the record date for the determination of shareholders entitled
to vote with respect thereto, and (ii) the resulting, successor or acquiring
entity (if not the Corporation) assumes by written instrument (in form and
substance reasonably satisfactory to the holders of a majority of the Series E
Preferred Shares then outstanding) the obligations of this Statement of
Designation. The above provisions shall apply regardless of whether or not
there would have been a sufficient number of shares of Common Stock authorized
and available for issuance upon conversion of the shares of Series E Preferred
Stock outstanding as of the date of such transaction, and shall similarly
apply to successive reclassifications, consolidations, mergers, sales,
transfers or share exchanges.
C. Adjustment Due to Major Announcement. In the event the Corporation
at any time after the Initial Issuance Date (i) makes a public announcement
that it intends to consolidate or merge with any other entity (other than a
merger in which the Corporation is the surviving or continuing entity and its
capital stock is unchanged) or to sell or transfer all or substantially all of
the assets of the Corporation or (ii) any person, group or entity (including
the Corporation) publicly announces a tender offer, exchange offer or another
transaction to purchase 50% or more of the Corporation's Common Stock or
otherwise publicly announces an intention to replace a majority of the
Corporation's Board of Directors by waging or proxy battle or otherwise (the
date of the announcement or commencement referred to in clause (i) or (ii) of
this Paragraph C is hereinafter referred to as the "Announcement Date"), then
the Conversion Price shall, effective upon the Announcement Date and
continuing through the tenth trading day following the earlier of the
consummation of the proposed transaction or tender offer, exchange offer or
another transaction or the Abandonment Date (as defined below) (the earlier of
such dates being the "Adjusted Conversion Price Termination Date"), be equal
to the lower of (x) the Conversion Price which would have been applicable for
a Conversion occurring on the Announcement Date and (y) the Conversion Price
determined in accordance with Article III.C on the Conversion Date set forth
in the Notice of Conversion for the Conversion. After the Adjusted Conversion
Price Termination Date, the Conversion Price shall be determined as set forth
in Article III.C. "Abandonment Date" means with respect to any proposed
transaction or tender offer, exchange offer or another transaction for which a
public announcement or an action contemplated by this Paragraph C has been
made or commenced, the date upon which the Corporation (in the case of clause
(i) above) or the person, group or entity (in the case of clause (ii) above)
publicly announces the termination or abandonment of the proposed transaction
or tender offer, exchange offer or another transaction which caused this
Paragraph C to become operative.
D. Adjustment Due to Distribution. If, at any time after the Initial
Issuance Date, the Corporation shall declare or make any distribution of its
assets (or rights to acquire its assets) to holders of Common Stock as a
partial liquidating dividend, by way of return of capital or otherwise
(including any dividend or distribution to the Corporation's common
shareholders in shares (or rights to acquire shares) of capital stock of a
subsidiary (i.e. a spin-off)) (a "Distribution"), then the holders of Series E
Preferred Stock shall be entitled, upon any conversion of shares of Series E
Preferred Stock after the date of record for determining shareholders entitled
to such Distribution, to receive the amount of such assets which would have
been payable to the holder with respect to the shares of Common Stock issuable
upon such conversion (without giving effect to the limitations contained in
Article IV.C) had such holder been the holder of such shares of Common Stock
on the record date for the determination of shareholders entitled to such
Distribution.
16
<PAGE>
E. Issuance of Other Securities. (i) If at any time after the Initial
Issuance Date the Corporation issues or sells or in accordance with Article
XI.E(ii) is deemed to have issued and sold any shares of Common Stock for no
consideration or for a consideration per share less than the Dilutive Price
(as defined in this subparagraph) on the date of issuance (a "Dilutive
Issuance"), then effective immediately upon the Dilutive Issuance, the
Conversion Price will be adjusted in accordance with the formula below. For
purposes of this subparagraph, "Dilutive Price" means the Market Price. The
Conversion Price will be adjusted in accordance with the following formula:
C' = C x O + P/M ;
CSDO
where:
C' = the adjusted Conversion Price;
C = the then current Conversion Price;
M = the then current Market Price;
O = the number of shares of Common Stock outstanding
immediately prior to the Dilutive Issuance;
P = the aggregate consideration, calculated as set forth
herein, received by the Corporation upon such Dilutive
Issuance; and
CSDO = the total number of shares of Common Stock deemed
outstanding immediately after the Dilutive Issuance.
(ii) Effect on Conversion Price of Certain Events. For purposes of
determining the adjusted Conversion Price under Article XI.E(i) hereof, the
following will be applicable:
(a) Issuance of Rights or Options. If the Corporation in any
manner issues or grants any warrants, rights or options, whether or not
immediately exercisable, to subscribe for or to purchase Common Stock or other
securities exercisable, convertible into or exchangeable for Common Stock
("Convertible Securities") (such warrants, rights and options to purchase
Common Stock or Convertible Securities are hereinafter referred to as
"Options") and the price per share for which Common Stock is issuable upon the
exercise of such Options is less than the Dilutive Price in effect on the date
of issuance of such Options ("Below Market Options"), then the maximum total
number of shares of Common Stock issuable upon the exercise of all such Below
Market Options (assuming full exercise, conversion or exchange of Convertible
Securities, if applicable) will, as of the date of the issuance or grant of
such Below Market Options, be deemed to be outstanding and to have been issued
and sold by the Corporation for such price per share. For purposes of the
preceding sentence, the "price per share for which Common Stock is issuable
upon the exercise of such Below Market Options" is determined by dividing (i)
the total amount, if any, received or receivable by the Corporation as
consideration for the issuance or granting of all such Below Market Options,
plus the minimum aggregate amount of additional consideration, if any, payable
to the Corporation upon the exercise of all such Below Market Options, plus,
in the case of Convertible Securities issuable upon the exercise of such Below
Market Options, the minimum aggregate amount of additional consideration
payable upon the exercise, conversion or exchange thereof at the time such
Convertible Securities first become exercisable, convertible or exchangeable,
by (ii) the maximum total number of shares of Common Stock issuable upon the
exercise of all such Below Market Options (assuming full conversion of
Convertible Securities, if applicable). No further adjustment to the
Conversion Price will be made upon the actual issuance of such Common Stock
upon the exercise of such Below Market Options or upon the exercise,
conversion or exchange of Convertible Securities issuable upon exercise of
such Below Market Options.
17
<PAGE>
(b) Issuance of Convertible Securities.
(A) If the Corporation in any manner issues or sells any
Convertible Securities, whether or not immediately convertible (other than
where the same are issuable upon the exercise of Options) and the price per
share for which Common Stock is issuable upon such exercise, conversion or
exchange (as determined pursuant to Article XI.E(ii)(b)(A) if applicable) is
less than the Dilutive Price in effect on the date of issuance of such
Convertible Securities, then the maximum total number of shares of Common
Stock issuable upon the exercise, conversion or exchange of all such
Convertible Securities will, as of the date of the issuance of such
Convertible Securities, be deemed to be outstanding and to have been issued
and sold by the Corporation for such price per share. For the purposes of the
preceding sentence, the "price per share for which Common Stock is issuable
upon such exercise, conversion or exchange" is determined by dividing (i) the
total amount, if any, received or receivable by the Corporation as
consideration for the issuance or sale of all such Convertible Securities,
plus the minimum aggregate amount of additional consideration, if any, payable
to the Corporation upon the exercise, conversion or exchange thereof at the
time such Convertible Securities first become exercisable, convertible or
exchangeable, by (ii) the maximum total number of shares of Common Stock
issuable upon the exercise, conversion or exchange of all such Convertible
Securities. No further adjustment to the Conversion Price will be made upon
the actual issuance of such Common Stock upon exercise, conversion or exchange
of such Convertible Securities.
(B) If the Corporation in any manner issues or sells any
Convertible Securities with a fluctuating conversion or exercise price or
exchange ratio (a "Variable Rate Convertible Security"), then the "price per
share for which Common Stock is issuable upon such exercise, conversion or
exchange" for purposes of the calculation contemplated by Section 4(b)(ii)(A)
shall be deemed to be the lowest price per share which would be applicable
(assuming all holding period and other conditions to any discounts contained
in such Convertible Security have been satisfied) if the Dilutive Price on the
date of issuance of such Convertible Security was 75% of the Dilutive Price on
such date (the "Assumed Variable Market Price"). Further, if the Dilutive
Price at any time or times thereafter is less than or equal to the Assumed
Variable Market Price last used for making any adjustment under this Section 4
with respect to any Variable Rate Convertible Security, the Conversion Price
in effect at such time shall be readjusted to equal the Conversion Price which
would have resulted if the Assumed Variable Market Price at the time of
issuance of the Variable Rate Convertible Security had been 75% of the
Dilutive Price existing at the time of the adjustment required by this
sentence.
(c) Change in Option Price or Conversion Rate. If there is a
change at any time in (i) the amount of additional consideration payable to
the Corporation upon the exercise of any Options; (ii) the amount of
additional consideration, if any, payable to the Corporation upon the
exercise, conversion or exchange of any Convertible Securities; or (iii) the
rate at which any Convertible Securities are convertible into or exchangeable
for Common Stock (in each such case, other than under or by reason of
provisions designed to protect against dilution), the Conversion Price in
effect at the time of such change will be readjusted to the Conversion Price
which would have been in effect at such time had such Options or Convertible
Securities still outstanding provided for such changed additional
consideration or changed conversion rate, as the case may be, at the time
initially granted, issued or sold.
18
<PAGE>
(d) Treatment of Expired Options and Unexercised Convertible
Securities. If, in any case, the total number of shares of Common Stock
issuable upon exercise of any Option or upon exercise, conversion or exchange
of any Convertible Securities is not, in fact, issued and the rights to
exercise such Option or to exercise, convert or exchange such Convertible
Securities shall have expired or terminated, the Conversion Price then in
effect will be readjusted to the Conversion Price which would have been in
effect at the time of such expiration or termination had such Option or
Convertible Securities, to the extent outstanding immediately prior to such
expiration or termination (other than in respect of the actual number of
shares of Common Stock issued upon exercise or conversion thereof), never been
issued.
(e) Calculation of Consideration Received. If any Common
Stock, Options or Convertible Securities are issued, granted or sold for cash,
the consideration received therefor for purposes hereof will be the amount
received by the Corporation therefor, before deduction of reasonable
commissions, underwriting discounts or allowances or other reasonable expenses
paid or incurred by the Corporation in connection with such issuance, grant or
sale. In case any Common Stock, Options or Convertible Securities are issued
or sold for a consideration part or all of which shall be other than cash, the
amount of the consideration other than cash received by the Corporation will
be the fair market value of such consideration, except where such
consideration consists of securities, in which case the amount of
consideration received by the Corporation will be the Market Price thereof as
of the date of receipt. In case any Common Stock, Options or Convertible
Securities are issued in connection with any merger or consolidation in which
the Corporation is the surviving corporation, the amount of consideration
therefor will be deemed to be the fair market value of such portion of the net
assets and business of the non-surviving corporation as is attributable to
such Common Stock, Options or Convertible Securities, as the case may be. The
fair market value of any consideration other than cash or securities will be
determined in good faith by an investment banker or other appropriate expert
of national reputation selected by the Corporation and reasonably acceptable
to the holder hereof, with the costs of such appraisal to be borne by the
Corporation. In case any Common Stock, Options or Convertible Securities are
issued in connection with the issuance of debt securities the amount of
consideration therefor shall be the cash received by the Corporation and the
value of the securities issued by the Corporation shall be the fair market
value of all securities and instruments issued in such transaction, with fair
market value being determined by agreement between the holder hereof and the
Corporation or if no such agreement is reached pursuant to the immediately
preceding sentence. For all Options and Warrants the fair market value
thereof shall be determined in accordance with the black shoals methodology.
(f) Exceptions to Adjustment of Conversion Price. No
adjustment to the Conversion Price will be made (i) upon the exercise of any
warrants, options or convertible securities issued and outstanding on the
Issue Date and set forth on Schedule 3(d) of the Securities Purchase Agreement
in accordance with the terms of such securities as of such date or (ii) upon
the grant or exercise of any stock or options which may hereafter be granted
or exercised under any employee benefit plan of the Corporation now existing
or to be implemented in the future, so long as the issuance of such stock or
options is approved by a majority of the non-employee members of the Board of
Directors of the Corporation, if any, or a majority of the members of a
committee of non-employee directors established for such purpose; (iii) upon
the issuance of securities pursuant to an underwriters public offering; or
(iv) upon issuance of shares in connection with the acquisition of Prostar,
Inc.
19
<PAGE>
F. Purchase Rights. If, at any time after the Initial Issuance Date,
the Corporation issues any securities which are convertible into or
exchangeable for Common Stock, or rights to purchase stock, warrants,
securities or other property (the "Purchase Rights") pro rata to the record
holders of any class of Common Stock, then the holders of Series E Preferred
Stock will be entitled to acquire, upon the terms applicable to such Purchase
Rights, the aggregate Purchase Rights which such holder could have acquired if
such holder had held the number of shares of Common Stock acquirable upon
complete conversion of the Series E Preferred Stock (without giving effect to
the limitations contained in Article IV.C) immediately before the date on
which a record is taken for the grant, issuance or sale of such Purchase
Rights, or, if no such record is taken, the date as of which the record
holders of Common Stock are to be determined for the grant, issue or sale of
such Purchase Rights.
G. Notice of Adjustments. Upon the occurrence of each adjustment or
readjustment of the Conversion Price pursuant to this Article XI, the
Corporation, at its expense, shall promptly compute such adjustment or
readjustment and prepare and furnish to each holder of Series E Preferred
Stock a certificate setting forth such adjustment or readjustment and showing
in detail the facts upon which such adjustment or readjustment is based. The
Corporation shall, upon the written request at any time of any holder of
Series E Preferred Stock, furnish to such holder a like certificate setting
forth (i) such adjustment or readjustment, (ii) the Conversion Price at the
time in effect and (iii) the number of shares of Common Stock and the amount,
if any, of other securities or property which at the time would be received
upon conversion of a share of Series E Preferred Stock.
XII. VOTING RIGHTS
The holders of the Series E Preferred Stock have no voting power
whatsoever, except as otherwise provided by the Colorado Business Corporation
Act (the "Business Corporation Act") and in Article XIII below.
Notwithstanding the above, the Corporation shall provide each holder of
Series E Preferred Stock with prior notification of any meeting of the
shareholders (and copies of proxy materials and other information sent to
shareholders) at the same time such notice and materials are provided to the
holders of Common Stock. If the Corporation takes a record of its
shareholders for the purpose of determining shareholders entitled to (a)
receive payment of any dividend or other distribution, any right to subscribe
for, purchase or otherwise acquire (including by way of merger consolidation
or recapitalization) any share of any class or any other securities or
property, or to receive any other right, or (b) to vote in connection with any
proposed sale, lease or conveyance of all or substantially all of the assets
of the Corporation, or any proposed merger, consolidation, liquidation,
dissolution or winding up of the Corporation, the Corporation shall mail a
notice to each holder, at least 20 days prior to the record date specified
therein (but in no event earlier than public announcement of such proposed
transaction), of the date on which any such record is to be taken for the
purpose of such dividend, distribution, right or other event, and a brief
statement regarding the amount and character of such dividend, distribution,
right or other event to the extent known at such time.
To the extent that under the Business Corporation Act the vote of the
holders of the Series E Preferred Stock, voting separately as a class or
series, as applicable, is required to authorize a given action of the
Corporation, the affirmative vote or consent of the holders of at least a
majority of the then outstanding shares of the Series E Preferred Stock
represented at a duly held meeting at which a quorum is present or by written
20
<PAGE>
consent of the holders of at least a majority of the then outstanding shares
of Series E Preferred Stock (except as otherwise may be required under the
Business Corporation Act) shall constitute the approval of such action by the
class. To the extent that under the Business Corporation Act holders of the
Series E Preferred Stock are entitled to vote on a matter with holders of
Common Stock, voting together as one class, each share of Series E Preferred
Stock shall be entitled to a number of votes equal to the number of shares of
Common Stock into which it is then convertible (subject to the limitations
contained in Article IV.C(ii)) using the record date for the taking of such
vote of shareholders as the date as of which the Conversion Price is
calculated.
XIII. PROTECTION PROVISIONS
So long as any shares of Series E Preferred Stock are outstanding, the
Corporation shall not without first obtaining the approval (by vote or written
consent, as provided by the Business Corporation Act) of a majority in
interest of the holders of the then outstanding shares of Series E Preferred
Stock:
(a) alter or change the rights, preferences or privileges of
the Series E Preferred Stock;
(b) alter or change the rights, preferences or privileges of
any previously issued shares of capital stock of the Corporation so as to
affect adversely the Series E Preferred Stock;
(c) create any new class or series of capital stock having a
preference over the Series E Preferred Stock as to distribution of assets upon
liquidation, dissolution or winding up of the Corporation (as previously
defined in Article IX hereof, "Senior Securities");
(d) create any new class or series of capital stock ranking
pari passu with the Series E Preferred Stock as to distribution of assets upon
liquidation, dissolution or winding up of the Corporation (as previously
defined in Article IX hereof, "Pari Passu Securities");
(e) increase the authorized number of shares of Series E
Preferred Stock;
(f) issue any shares of Senior Securities;
(g) issue any shares of Series E Preferred Stock other than
pursuant to the Securities Purchase Agreement;
(h) redeem, or declare or pay any cash dividend or
distribution on, any Junior Securities; or
(i) increase the par value of the Common Stock.
Notwithstanding the foregoing, no change pursuant to this Article XIII shall
be effective to the extent that, by its terms, it applies to less than all of
the holders of shares of Series B Preferred Stock then outstanding.
XIV. MISCELLANEOUS
A. Cancellation of Series E Preferred Stock. If any shares of Series E
Preferred Stock are converted pursuant to Article IV, the shares so converted
shall be canceled, shall return to the status of authorized, but unissued
preferred stock of no designated series, and shall not be issuable by the
Corporation as Series E Preferred Stock.
21
<PAGE>
B. Lost or Stolen Certificates. Upon receipt by the Corporation of (i)
evidence of the loss, theft, destruction or mutilation of any Preferred Stock
Certificate(s) and (ii) (y) in the case of loss, theft or destruction, of
indemnity (without any bond or other security) reasonably satisfactory to the
Corporation, or (z) in the case of mutilation, upon surrender and cancellation
of the Preferred Stock Certificate(s), the Corporation shall execute and
deliver new Preferred Stock Certificate(s) of like tenor and date. However,
the Corporation shall not be obligated to reissue such lost or stolen
Preferred Stock Certificate(s) if the holder contemporaneously requests the
Corporation to convert such Series E Preferred Stock.
C. Allocation of Cap Amount and Reserved Amount. The initial Cap Amount
and Reserved Amount shall be allocated pro rata among the holders of Series E
Preferred Stock based on the number of shares of Series E Preferred Stock
issued to each holder. Each increase to the Cap Amount and the Reserved
Amount shall be allocated pro rata among the holders of Series E Preferred
Stock based on the number of shares of Series E Preferred Stock held by each
holder at the time of the increase in the Cap Amount or Reserved Amount. In
the event a holder shall sell or otherwise transfer any of such holder's
shares of Series E Preferred Stock, each transferee shall be allocated a pro
rata portion of such transferor's Cap Amount and Reserved Amount. Any portion
of the Cap Amount or Reserved Amount which remains allocated to any person or
entity which does not hold any Series E Preferred Stock shall be allocated to
the remaining holders of shares of Series E Preferred Stock, pro rata based on
the number of shares of Series E Preferred Stock then held by such holders.
D. Quarterly Statements of Available Shares. For each calendar quarter
beginning in the quarter in which the initial registration statement required
to be filed pursuant to the Registration Rights Agreement is declared
effective and thereafter so long as any shares of Series E Preferred Stock are
outstanding, the Corporation shall deliver (or cause its transfer agent to
deliver) to each holder a written report notifying the holders of any
occurrence which prohibits the Corporation from issuing Common Stock upon any
such conversion. The report shall also specify (i) the total number of shares
of Series E Preferred Stock outstanding as of the end of such quarter, (ii)
the total number of shares of Common Stock issued upon all conversions of
Series E Preferred Stock prior to the end of such quarter, (iii) the total
number of shares of Common Stock which are reserved for issuance upon
conversion of the Series E Preferred Stock as of the end of such quarter and
(iv) the total number of shares of Common Stock which may thereafter be listed
or issued by the Corporation upon conversion of the Series E Preferred Stock
before the Corporation would exceed the Cap Amount and the Reserved Amount.
The Corporation (or its transfer agent) shall deliver the report for each
quarter to each holder prior to the tenth day of the calendar month following
the quarter to which such report relates. In addition, the Corporation (or
its transfer agent) shall provide, within 15 days after delivery to the
Corporation of a written request by any holder, any of the information
enumerated in clauses (i) - (iv) of this Paragraph D as of the date of such
request.
E. Payment of Cash; Defaults. Whenever the Corporation is required to
make any cash payment to a holder under this Statement of Designation (upon
redemption or otherwise), such cash payment shall be made to the holder within
five business days after delivery by such holder of a notice specifying that
the holder elects to receive such payment in cash and the method (e.g., by
check, wire transfer) in which such payment should be made. If such payment
is not delivered within such five business day period, such holder shall
thereafter be entitled to interest on the unpaid amount at a per annum rate
equal to the lower of twenty-four percent (24%) and the highest interest rate
permitted by applicable law until such amount is paid in full to the holder.
22
<PAGE>
F. Status as Stockholder. Upon submission of a Notice of Conversion by
a holder of Series E Preferred Stock, (i) the shares covered thereby (other
than the shares, if any, which cannot be issued because their listing or
issuance would exceed such holder's allocated portion of the Reserved Amount
or Cap Amount) shall be deemed converted into shares of Common Stock and (ii)
the holder's rights as a holder of such converted shares of Series E Preferred
Stock shall cease and terminate, excepting only the right to receive
certificates for such shares of Common Stock and to any remedies provided
herein or otherwise available at law or in equity to such holder because of a
failure by the Corporation to comply with the terms of this Statement of
Designation. Notwithstanding the foregoing, if a holder has not received
certificates for all shares of Common Stock prior to the tenth business day
after the expiration of the Delivery Period with respect to a conversion of
Series E Preferred Stock for any reason, then (unless the holder otherwise
elects to retain its status as a holder of Common Stock by so notifying the
Corporation within five business days after the expiration of such 10 business
day period) the holder shall regain the rights of a holder of Series E
Preferred Stock with respect to such unconverted shares of Series E Preferred
Stock and the Corporation shall, as soon as practicable, return such
unconverted shares to the holder. In all cases, the holder shall retain all
of its rights and remedies (including, without limitation, the right to have
the Conversion Price with respect to subsequent conversions determined in
accordance with Article VI.A) for the Corporation's failure to convert Series
E Preferred Stock.
G. Remedies Cumulative. The remedies provided in this Statement of
Designation shall be cumulative and in addition to all other remedies
available under this Statement of Designation, at law or in equity (including
a decree of specific performance and/or other injunctive relief), and nothing
herein shall limit a holder's right to pursue actual damages for any failure
by the Corporation to comply with the terms of this Statement of Designation.
The Corporation acknowledges that a breach by it of its obligations hereunder
will cause irreparable harm to the holders of Series E Preferred Stock and
that the remedy at law for any such breach may be inadequate. The Corporation
therefore agrees, in the event of any such breach or threatened breach, that
the holders of Series E Preferred Stock shall be entitled, in addition to all
other available remedies, to an injunction restraining any breach, without the
necessity of showing economic loss and without any bond or other security
being required.
IN WITNESS WHEREOF, the undersigned Corporation has caused these Articles
of Amendment to the Articles of Incorporation to be signed by a duly
authorized officer and duly attested by another such officer, to be hereunto
affixed on this 8th day of November, 1999.
U.S. TRUCKING, INC.
By:/s/ Danny L. Pixler
Name: Danny L. Pixler, President
ATTEST:
/s/ Marion W. Huff
23
<PAGE>
NOTICE OF CONVERSION
(To be Executed by the Registered Holder
in order to Convert the Series E Preferred Stock)
The undersigned hereby irrevocably elects to convert ____________ shares of
Series E Preferred Stock (the "Conversion"), represented by stock certificate
Nos(s). ___________ (the "Preferred Stock Certificates"), into shares of
common stock ("Common Stock") of U.S. TRUCKING, INC. (the "Corporation")
according to the conditions of the Statement of Designation, Rights and
Preferences of the Series E Convertible Preferred Stock of U.S. Trucking, Inc.
(the "Statement of Designation"), as of the date written below. If securities
are to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto. No fee
will be charged to the holder for any conversion, except for transfer taxes,
if any. A copy of each Preferred Stock Certificate is attached hereto (or
evidence of loss, theft or destruction thereof).
The undersigned requests that the Corporation electronically transmit the
Common Stock issuable pursuant to this Notice of Conversion to the account of
the undersigned or its nominee (which is _________________) with DTC through
its Deposit Withdrawal Agent Commission System ("DTC Transfer").
The undersigned represents and warrants that all offers and sales by the
undersigned of the securities issuable to the undersigned upon conversion of
the Series E Preferred Stock shall be made pursuant to registration of the
Common Stock under the Securities Act of 1933, as amended (the "Act"), or
pursuant to an exemption from registration under the Act.
In lieu of receiving the shares of Common Stock issuable pursuant to this
Notice of Conversion by way of DTC Transfer, the undersigned hereby requests
that the Corporation issue and deliver to the undersigned physical
certificates representing such shares of Common Stock.
Date of Conversion:
Applicable Conversion Price:
Number of Shares of Common
Stock to be Issued:
Signature:
Name:
Address:_______________________________________
_______________________________________
_______________________________________
24
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
consolidated balance sheets and consolidated statements of operations found on
pages 3-6 of the Company's Form 10-Q for the year to date, and is qualified in
its entirety by reference to such financial statements.
</LEGEND>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> SEP-30-1999
<CASH> 1,556,338
<SECURITIES> 0
<RECEIVABLES> 10,274,021
<ALLOWANCES> 0
<INVENTORY> 296,900
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0
2,665,462
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</TABLE>
