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Registration No. 33-_______
As filed with the Securities and Exchange Commission on January 8, 1999
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
U.S. TRUCKING, INC.
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(Exact Name of Registrant as Specified in its Charter)
Colorado 68-0133692
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(State of Incorporation) (IRS Employer Identification No.)
3125 Ashley Phosphate Road, Suite 128
North Charleston, South Carolina 29418
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(Address of Principal Executive Offices)
U.S. Trucking, Inc. 1998 Stock Option Plan
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(Full Title of the Plan)
W. Anthony Huff, Chairman
U.S. Trucking, Inc.
10602 Timberwood Circle #9
Louisville, Kentucky 40223
(502) 339-4000
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(Name, Address and Telephone Number of Agent for Service)
Copies to:
Judson B. Wagenseller, Esq.
Lynch, Cox, Gilman & Mahan,
500 Meidinger Tower
Louisville, Kentucky 40202
(502) 589-4215
CALCULATION OF REGISTRATION FEE
_____________________________________________________________________________
PROPOSED PROPOSED
TITLE OF EACH AMOUNT MAXIMUM MAXIMUM
CLASS OF SECUR- TO BE OFFERING AGGREGATE AMOUNT OF
ITIES TO BE REGIS- PRICE OFFERING REGISTRATION
REGISTERED TERED PER UNIT(1) PRICE FEE
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Common Stock 2,000,000 $1.30 $2,600,000 $722.80
No Par Value
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(1) Determined by a weighted average exercise price of $.21 for the 1,441,000
options granted to date under the plan and $4.10, which is the average of the
high and low prices reported on the NASD Bulletin Board on January 6, 1999,
for the 559,000 shares reserved but not yet granted under both plans, pursuant
to 17 C.F.R. Section 230.457(h)(1).
This Registration Statement shall become effective upon filing in accordance
with Section 8(a) of the Securities Act of 1933, as amended, and 17 C.F.R.
462.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by U.S. Trucking, Inc. (the
"Company") with the Securities and Exchange Commission under the Securities
Exchange Act of 1934 (the "Exchange Act") are hereby incorporated herein by
reference:
(1) The Company's Form 10-KSB for the fiscal year ended March 31, 1998.
(2) The Company's Quarterly Reports on Form 10-QSB for the quarters
ended June 30, 1998 and September 30, 1998.
(3) The Company's Current Reports on Form 8-K dated July 13, 1998 and
September 8, 1998.
In addition, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof
and prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
All shares of Common Stock bear equal voting rights and are not
assessable. Voting rights are not cumulative, and so holders of more than 50%
of the shares could, if they chose, elect all the Directors. Upon
liquidation, dissolution or winding up of the Company, the assets of the
Company, after payment of liabilities and any liquidation preferences on any
outstanding preferred stock, will be distributed pro rata to the holders of
the Common Stock. The holders of the Common Stock do not have preemptive
rights to subscribe for any securities of the Company and have no right to
require the Company to redeem or purchase their shares. Holders of Common
Stock are entitled to share equally in dividends when, as and if declared by
the Board of Directors, out of funds legally available therefor.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
The only statute, charter provision, bylaw, contract, or other
arrangement under which any controlling person, Director or Officer of the
Company is insured or indemnified in any manner against any liability which he
may incur in his capacity as such, is as follows:
(a) The Company has the power under the Colorado Business Corporation
Act to indemnify any person who was or is a party or is threatened to be made
a party to any action, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was a Director,
Officer, employee, fiduciary, or agent of the Company or was serving at its
request in a similar capacity for another entity, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection therewith if he acted in good faith
and in a manner he reasonably believed to be in the best interest of the
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corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. In case of an action
brought by or in the right of the Company such persons are similarly entitled
to indemnification if they acted in good faith and in a manner reasonably
believed to be in the best interests of the Company but no indemnification
shall be made if such person was adjudged to be liable to the Company for
negligence or misconduct in the performance of his duty to the Company unless
and to the extent the court in which such action or suit was brought
determines upon application that despite the adjudication of liability, in
view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnification. In such event, indemnification is limited to
reasonable expenses. Such indemnification is not deemed exclusive of any
other rights to which those indemnified may be entitled under the Articles of
Incorporation, Bylaws, agreement, vote of shareholders or disinterested
directors, or otherwise.
(b) The Articles of Incorporation and Bylaws of the Company generally
require indemnification of Officers and Directors to the fullest extent
allowed by law.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
Registrant, the Registrant has been informed that, in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. List of Exhibits.
The following documents are filed as exhibits to this Registration
Statement:
EXHIBIT
NUMBER DESCRIPTION / LOCATION
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4.1 Certificate of Incorporation and Bylaws, as amended
(incorporated by reference to Registrant's Form S-18
Registration Statement No. 33-9640-LA)
4.2 Articles of Amendment to Articles of Incorporation *
4.3 U.S. Trucking, Inc. 1998 Stock Option Plan *
5 Opinion of Krys Boyle Freedman & Sawyer, P.C. *
23.1 Consent of Krys Boyle Freedman & Sawyer, P.C. (contained in
Exhibit 5)
23.2 Consent of Schumacher & Associates, Inc., Certified Public
Accountants *
23.3 Consent of Hein + Associates LLP *
23.4 Consent of Bianculli, Pascale & Co., P.C. *
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* Filed herewith electronically
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Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that subparagraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
subparagraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to Item 6, or otherwise, the registrant has
been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned thereunto
duly authorized, in the City of N. Charleston, State of South Carolina, on
this 8th day of January 1999.
U. S. TRUCKING, INC.
January 8, 1999 By:/s/ Danny L. Pixler
Danny L. Pixler, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the capaci-
ties and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Danny L. Pixler President and Director January 8, 1999
Danny Pixler
/s/ Anthony Huff Chairman and Executive January 8, 1999
Anthony Huff Vice President
/s/ John Ragland Treasurer (Chief Finan- January 8, 1999
John Ragland cial and Accounting
Officer)
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION METHOD OF FILING/LOCATION
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4.1 Certificate of Incorporation and Incorporated by reference
Bylaws, as amended (incorporated to Registrant's Form S-18
Registration Statement No.
33-9640-LA)
4.2 Articles of Amendment to Filed herewith electronically
Articles of Incorporation
4.3 U.S. Trucking, Inc. 1998 Filed herewith electronically
Stock Option Plan
5 Opinion of Krys Boyle Freedman Filed herewith electronically
& Sawyer, P.C.
23.1 Consent of Krys Boyle Freedman Contained in Exhibit 5
& Sawyer, P.C.
23.2 Consent of Schumacher & Filed herewith electronically
Associates, Inc., Certified
Public Accountants
23.3 Consent of Hein + Associates LLP Filed herewith electronically
23.4 Consent of Bianculli, Pascale & Filed herewith electronically
Co., P.C.
U.S. TRUCKING, INC.
1998 STOCK OPTION PLAN
ARTICLE I
Purpose, Definitions and Effective Date
1.1 Purpose. The purpose of the 1998 Stock Option Plan ("Plan") of U.S.
Trucking, Inc. ("Company") is to promote the success and enhance the value of
the Company by linking the personal interests of Employees of the Company and
any Subsidiary to the interests of the Company's shareholders and by providing
Employees with an additional incentive for outstanding performance. To
achieve this purpose, Options to purchase shares of the Common Stock of the
Company ("Shares") may be granted to Employees of the Company and any
Subsidiary pursuant to the Plan.
1.2 Additional Definitions. In addition to definitions set forth
elsewhere in the Plan, for purposes of the Plan:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Cause" shall mean willful or gross malfeasance or misconduct
on the part of a Participant that is detrimental to the Company or any
Subsidiary as determined by the Committee in its sole discretion, except that
termination of a Participant's employment for "cause" pursuant to any
agreement of employment between the Participant and the Company shall be
conclusive in and of itself and therefore require no determination by the
Committee.
(c) "Committee" shall mean the Stock Option Committee of the Board,
which shall administer the Plan.
(d) "Employee" shall mean any employee or advisor of the Company or
any Subsidiary. Directors and advisors who are not otherwise employed by the
Company or any Subsidiary shall be considered, but solely for purposes of the
Plan, Employees under the Plan and, thus, eligible for Options other than
Incentive Stock Options.
(e) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, or any successor Act thereto and the rules and regulations of the
United States Securities and Exchange Commission thereunder.
(f) "Exercise Price" shall mean the price to be paid for each Share
pursuant to an Option.
(g) "Fair Market Value" shall mean the value of a Share on a
particular date, determined as follows: (i) if the Shares are not listed on
such date on any national securities exchange or on the National Association
of Securities Dealers Automated Quotation System or by the National Quotation
Bureau, Incorporated, the last sales price (or, if none on that date, on the
most recent date on which there was a last sales price) as reported by any
maker, if any, of a market in the Shares or other similar source or service
selected by the Committee; (ii) if the Shares are listed on such date on one
or more national securities exchanges or quotation system or bureau, the last
reported sale price of a Share on such date as recorded on the composite tape
system or, if such system does not cover the Shares, the last reported sale
price of a Share on such date on the principal national securities exchange on
which the Shares are listed or, if no sale of Shares took place on such date,
the last reported sale price of a Share on the most recent day on which a sale
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of a Share took place as recorded by such system or on such exchange, as the
case may be; or (iii) if the last sales price of the Shares cannot be
determined in accordance with (i) or (ii), the fair market value of a Share on
such date as determined in good faith by the Committee.
(h) "Incentive Stock Option" shall mean an Option that, in addition
to being subject to applicable terms, conditions and limitations established
by the Committee, complies with Section 422 of the Internal Revenue Code of
1986, as amended (the "Code"). Section 422 provides, among other limitations,
that: (i) to the extent that the aggregate Fair Market Value (determined as of
the time the Option is granted) of Shares subject to the option exercisable
for the first time by a Participant during any calendar year exceeds $100,000
(or such other limit as may be imposed by law) such Option shall not be
treated as an Incentive Stock Option; and (ii) the Option shall be exercisable
for a period of not more than ten (10) years from date of grant. If the
Committee determines to issue Incentive Stock Options but the Plan does not
then conform to the applicable legal requirements, the Plan shall be deemed
amended to so conform as of the date of grant of any Incentive Stock Option.
(i) "Option" shall mean the right to purchase one or more Shares on
the terms and conditions contained in this Plan, the rules of the Committee,
and the terms of an Option Agreement.
(j) "Option Agreement" shall mean the written agreement entered
into between the Company and the Employee upon grant of an Option and which
evidences the terms on which the Option may be exercised consistent with the
Plan.
(k) "Participant" shall mean an Employee who is granted an Option
pursuant to the Plan.
(l) "Restricted Shares" shall mean Shares granted pursuant to
Article IV Stock Options and Voting, designated as being "restricted" by the
Committee and subject to the restrictions and other terms and conditions set
forth in Article IV Stock Options and Voting or imposed by the Committee in
connection with the grant of Options.
(m) "Retirement" shall mean the termination of a Participant's
employment with the Company or any Subsidiary, for reasons other than death,
disability (as that term is used in Section 22(e)(3) of the Code
("Disability")) or for Cause, on or after the date the Participant reaches age
60.
(n) "Subsidiary" shall mean any corporation in which the Company
owns directly, or indirectly through subsidiaries, more than fifty percent
(50%) of the total combined voting power of all classes of stock, or any other
entity (including, but not limited to, partnerships and joint ventures) in
which the Company owns more than fifty percent (50%) of the combined equity
thereof.
1.3 Effective Date. The Plan was approved by the Board and became
effective as of September 9, 1998.
ARTICLE II
Administration
The Plan shall be administered by the Committee. The Committee shall
have full power, except as limited by law or by the Articles of Incorporation
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or Bylaws of the Company, and subject to the provisions of the Plan, to:
select the recipients of Options; determine the number of Shares subject to
each Option under the Plan; determine the sizes of grants of Options under the
Plan; determine the exercise price, duration, vesting requirements, and period
of exercisability of each Option; determine the terms and conditions of such
Option grants in a manner consistent with the Plan; determine whether the
Options are or are not Incentive Stock Options; determine whether or not the
Shares subject to an Option are Restricted Shares; construe and interpret the
Plan and any agreement or instrument entered into under the Plan; establish,
amend, or waive rules and regulations for the Plan's administration; and,
subject to the provisions of Article V Amendment, Modification, and
Termination, herein, amend the terms and conditions of any outstanding Options
to the extent such terms and conditions are within the discretion of the
Committee as provided in the Plan. Further, the Committee shall make all
other determinations which may be necessary or advisable for the
administration of the Plan.
ARTICLE III
Shares Subject to the Plan
3.1 Number of Shares. Subject to adjustment as provided in Section 3.3
Adjustments in Authorized Shares, the total number of Shares for which
Options may be granted under the Plan may not exceed Two Million (2,000,000)
Shares. These Shares may be either authorized but unissued or reacquired
Shares.
3.2 Lapsed Options. If any Option granted under the Plan is canceled,
terminates, expires, or lapses for any reason, any Shares subject to such
Option shall again be available for the grant of an Option under the Plan.
3.3 Adjustments, Merger. In the event of a business combination,
merger, reorganization, consolidation, recapitalization, separation,
liquidation, stock dividend, stock split, share combination, or other change
in the corporate structure of the Company affecting the Shares, such
adjustment shall be made in the number and class of Shares that may be
delivered under the Plan, and in the number and class of and/or price of
Shares subject to outstanding Options granted under the Plan, as may be
determined to be appropriate and equitable by the Committee, in its sole
discretion, to prevent dilution or enlargement of rights; and provided that
the number of Shares subject to any Option shall always be rounded down to the
nearest whole number. If the Company shall at any time merge, consolidate
with or into another corporation or association, or enter into a statutory
share exchange or any other similar business combination transaction in which
Shares are converted into securities and/or other property, each Participant
will thereafter receive, upon the exercise of an Option, the securities or
property to which a holder of the number of Shares then deliverable upon the
exercise of such Option would have been entitled upon the occurrence of such
transaction and the Company shall take such steps in connection with such
transaction as may be necessary to assure that the provisions of this Plan
shall thereafter be applicable, as nearly as is reasonably possible, in
relation to any securities or property thereafter deliverable upon the
exercise of such Option. A sale of all or substantially all the assets of the
Company for a consideration (apart from the assumption of obligations)
consisting primarily of securities shall be deemed a transaction subject to
the foregoing provisions. Notwithstanding the foregoing, if the Company is to
be consolidated with or acquired by another entity in a merger, sale of all or
substantially all of the Company's assets or otherwise, the Company shall have
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the option to (i) upon written notice to the optionees, provide that all
Options must be exercised, to the extent then exercisable, within a specified
number of days of the date of such notice, at the end of which period the
Options shall terminate, or (ii) terminate all Options in exchange for a cash
payment equal to the excess of the fair market value of the shares subject to
such Options (to the extent then exercisable) over the exercise price thereof.
ARTICLE IV
Stock Options and Voting
4.1 Grant of Options. Subject to the terms and provisions of the Plan,
Options may be granted to such Employees, at such times and on such terms and
conditions, as shall be determined by the Committee; provided, however, no
Options may be granted after the 10th anniversary of the effective date of the
Plan, and provided further, that no Incentive Stock Option shall be granted to
any Employee of any Subsidiary if the Subsidiary is not a "subsidiary" as
defined in Section 424(f) of the Code. The Committee shall have discretion in
determining the number of Options and the number of Shares subject to each
Option granted to each Participant. Without limiting the generality of the
foregoing, the Committee shall have the authority to establish guidelines
setting forth anticipated grant levels which correspond to various salary
grades or the equivalent thereof.
4.2 Form of Issuance. Options may be issued in the form of a
certificate or may be recorded on the books and records of the Company for the
account of the Participant. If an Option is not issued in the form of a
certificate, then the Option shall be deemed granted upon issuance of a notice
of the grant addressed to the recipient. The terms and conditions of an
Option shall be set forth in the certificate, in the notice of the issuance of
the grant, or in such other documents as the Committee shall determine. The
Committee shall require a Participant to enter into an Option Agreement (the
written agreement containing the terms and conditions relating to the Option
and its exercise) and to acknowledge receipt of a copy of the Option Agreement
and the Plan.
4.3 Option Price. The Option Price for each grant of an Option shall be
determined by the Committee; provided, however, that the minimum with respect
to Incentive Stock Options shall be one hundred percent (100%) of the Fair
Market Value of a Share on the date as of which the Option is granted.
However, if a Participant owns stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company (including stock
deemed owned under Section 425(d) of the Code), the purchase price per Share
deliverable upon exercise of each Incentive Stock Option shall not be less
than 110% of the Fair Market Value of the Shares on the date of grant.
4.4 Duration of Options. Each Option shall expire at such time as the
Committee shall determine at the time of grant; provided, however, that no
Option shall be exercisable later than the tenth (10th) anniversary date of
its grant. However, if a Participant owns stock possessing more than 10% of
the total combined voting power of all classes of stock of the Company
(including stock deemed owned under Section 425(d) of the Code), the Incentive
Stock Option granted to such Participant shall not be exercisable after the
expiration of five years from the date of Grant.
4.5 Vesting of Options. Options shall become exercisable ("vest") at
such times and under such terms and conditions as determined by the Committee.
The Committee shall have the authority to accelerate the vesting of an Option.
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The Committee, in its sole discretion, may from time to time authorize the
grant of Options with respect to Restricted Shares. Such Options with respect
to Restricted Shares shall be exercisable immediately but the Restricted
Shares issued upon exercise of the Options shall be subject to such
restrictions, including such vesting schedule and other terms and conditions,
as may be established by the Committee. Until the expiration of the
restriction period or the lapse of the restrictions in accordance with the
terms and conditions established by the Committee, the Restricted Shares shall
be subject to the following restrictions and any additional restrictions that
the Committee, in its sole discretion, may from time to time deem desirable in
furtherance of the objectives of the Plan:
(a) The Participant shall not be entitled to receive the
certificate or certificates representing the Restricted Shares.
(b) The Restricted Shares may not be sold, transferred, assigned,
pledged, conveyed, hypothecated or otherwise disposed of.
(c) If the employment of the Participant is terminated for any
reason other than the Retirement, Disability or death of the Participant
before the expiration of the restriction period, the Restricted Shares shall
be forfeited immediately and all rights of the Participant to such Shares
shall terminate immediately without further obligation on the part of the
Company. If the Participant's employment is terminated by reason of the
Retirement, Disability or death of the Participant before the expiration of
the restriction period, the number of Restricted Shares held by the Company
for the Participant's account shall be reduced by the proportion of the
restriction period remaining after the Participant's termination of
employment; the restrictions on the balance of such Restricted Shares shall
lapse on the date the Participant's employment terminated and the certificate
or certificates representing the Shares upon which the restrictions have
lapsed shall be delivered to the Participant or his beneficiary or other
successor in the event of the Participant's death. The Committee, in its sole
discretion, may waive any or all restrictions with respect to Restricted
Shares.
4.6 Exercise of Options. Options granted under the Plan shall be
exercisable at such times and be subject to such restrictions and conditions
as the Committee shall in each instance approve, which need not be the same
for each grant or for each Participant.
4.7 Payment. Payment for Shares purchased upon any exercise of an
Option shall be made in full in cash concurrently with such exercise, except
that, if and to the extent the instrument evidencing the Option so provides
and if the Company is not then prohibited from purchasing or acquiring Shares,
such payment may be made in whole or in part with shares of the same class of
stock as that then subject to the Option, delivered in lieu of cash
concurrently with such exercise, the shares so delivered to be valued on the
basis of the Fair Market Value of the Shares on the day preceding the date of
exercise. If and while payment with Shares is permitted for the exercise of an
Option in accordance with the foregoing provision, the person then entitled to
exercise that Option may, in lieu of using previously outstanding Shares
therefor, use some of the Shares as to which the Option is then being
exercised. Payment of the Option Price by the "delivery" of previously owned
Shares may be made constructively so that the payment Shares are only
hypothetically transferred and only the net number of additional post-payment,
post-exercise Shares is actually issued by the Company.
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4.8 Termination of Employment. Except as may be determined otherwise by
the Committee with respect to individual awards, the following shall apply
with respect to options of employees whose employment is terminated:
(a) Termination by Reason of Death or Disability. If the
employment of a Participant is terminated by reason of death or Disability,
any outstanding Options granted to the Participant shall vest as of the date
of termination of employment and may be exercised, if at all, no more than one
(1) year following termination of employment, unless the Options, by their
terms, expire earlier.
(b) Termination by Retirement. If the employment is terminated by
reason of Retirement, any outstanding Options granted to the Participant that
are vested as of the date of termination of employment may be exercised, if at
all, no more than three (3) years following termination of employment, unless
the Options, by their terms, expire earlier. In the case of Incentive Stock
Options, any Option exercised more than three months after termination of
employment shall lose its status as an Incentive Stock Option.
(c) Termination of Employment for Other Reasons. If the
employment of a Participant shall terminate for any reason other than the
reasons set forth in (a) or (b), above, and other than for Cause, all
outstanding Options granted to the Participant which are vested as of the date
of termination of employment may be exercised by the Participant within the
period beginning on the effective date of termination of employment and ending
three (3) months after such date, unless the Options, by their terms, expire
earlier.
(d) Termination for Cause. If the employment of a Participant
shall terminate for Cause, all outstanding Options held by the Participant
shall immediately terminate and be forfeited to the Company at the date notice
of termination is given.
(e) Options Not Vested at Termination. Any outstanding Options
not vested as of the effective date of termination of employment shall expire
immediately and shall be forfeited to the Company.
4.9 Transfers. For purposes of the Plan, transfer of employment of a
Participant between the Company and any Subsidiary (or between two
Subsidiaries) shall not be deemed a termination of employment.
4.10 Nontransferability of Options. No Option granted pursuant to the
Plan shall be transferable otherwise than by the laws of descent and
distribution and as may be permitted by the Committee with respect to Options
which are not Incentive Stock Options. During the lifetime of a Participant,
the Option shall be exercisable only by the Participant personally (or
permitted transferee) or by the Participant's guardian or legal
representative. If a Participant shall die, the executor or administrator of
the Participant's estate or a transferee of the Option pursuant to a will or
the laws of descent and distribution shall have the right to exercise the
Option in lieu of the Participant.
ARTICLE V
Amendment, Modification, and Termination
5.1 Amendment, Modification, and Termination. The Board may at any time
and from time to time terminate, amend, or modify the Plan. However, no
amendment or modification of the Plan shall be made without the approval of
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the shareholders of the Company if such shareholder approval is required by
the Code, by applicable insider trading rules under Section 16 of the Exchange
Act, by any national securities exchange or system on which the Shares are
then listed or reported, or by a regulatory body having jurisdiction with
respect hereto.
5.2 Awards Previously Granted. No termination, amendment, or
modification of the Plan shall in any material manner adversely affect any
Option previously granted under the Plan without the written consent of the
Participant holding such Option.
ARTICLE VI
Withholding
6.1 Tax Withholding. The Company shall have the power and the right to
deduct or withhold an amount sufficient to satisfy Federal, state and local
taxes required by law to be withheld with respect to any grant, exercise, or
payment made under or as a result of the Plan. At the discretion of the
Committee, a Participant may be permitted to pay to the Company the
withholding amount in the form of cash or previously owned Shares in
accordance with Section 4.7 Payment. If payment of the withholding amount is
made by the delivery of Shares, the value of the Shares delivered shall equal
the Fair Market Value of the Shares on the day preceding the date of exercise
of the Option.
6.2 Share Withholding. With respect to tax withholding required upon
the exercise of Options, a Participant may elect, subject to the approval of
the Committee, to satisfy the withholding requirement, in whole or in part, by
having the Company withhold Shares having a Fair Market Value on the date the
tax is to be determined equal to an amount sufficient to satisfy Federal,
state and local taxes.
ARTICLE VII
Miscellaneous
7.1 Employment. Nothing in the Plan shall interfere with or limit in
any way the right of the Company or any Subsidiary to terminate any
Participant's employment at any time nor confer upon any Participant any right
to continue in the employment of the Company or any Subsidiary.
7.2 Participation. No Employee shall have the right to be selected to
receive an Option under the Plan, or, having been so selected, to receive a
future Option.
7.3 Successors. All obligations of the Company under the Plan shall be
binding on any successor to the Company, whether the existence of such
successor is the result of a direct or indirect purchase, merger,
consolidation, business combination or otherwise, of all or substantially all
of the business and/or assets of the Company.
7.4 Holding Period. If a Participant shall have the right to require
the Company to repurchase any Shares acquired pursuant to the exercise of an
Option, that right shall be exercised only as to Shares which have been held
for not less than six months.
7.5 Distribution of Stock--Securities Restrictions. The Committee may
require Participants receiving Shares pursuant to any Option under the Plan to
represent to and agree with the Company in writing that the Participant is
acquiring the Shares for investment without a view to distribution thereof.
No Shares shall be issued or transferred pursuant to an Option unless such
7
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issuance or transfer complies with all relevant provisions of law, including
but not limited to, the (i) limitations, if any, imposed in the state of
issuance or transfer, (ii) restrictions, if any, imposed by the Securities Act
of 1993, as amended, the Exchange Act, and the rules and regulations
promulgated thereunder, and (iii) requirements of any stock exchange upon
which the Shares may then be listed. The certificates for such Shares may
include any legend which the Committee deems appropriate to reflect any
restrictions on transfer.
7.6 Governing Law. The Plan, and any and all agreements hereunder,
shall be construed in accordance with and governed by the internal laws of the
State of Colorado.
8
ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION OF
NORTHERN DANCER CORPORATION
CHANGING ITS NAME TO
U.S. TRUCKING, INC.
Pursuant to the provisions of the Colorado Business Corporation Act, the
undersigned Corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
FIRST: The name of the Corporation is NORTHERN DANCER CORPORATION.
SECOND: The following amendment was adopted on August 20, 1998, by the
Board of Directors, and on September 4, 1998, by a vote of the Shareholders of
the Corporation, in the manner prescribed by the Colorado Business Corporation
Act. The number of shares voted for the amendment was sufficient for
approval.
The FIRST Article shall be amended to read as follows:
The name of the Corporation shall be U.S. TRUCKING, INC.
The first paragraph of the FOURTH Article shall be amended to read as
follows:
The aggregate number of shares which this Corporation shall
have the authority to issue is Seventy-five Million (75,000,000)
shares of no par value each, which shares shall be designated
"Common Stock"; and Ten Million (10,000,000) shares of no par value
each, which shares shall be designated "Preferred Stock" and which
may be issued in one or more series at the discretion of the Board
of Directors. In establishing a series the Board of Directors shall
give to it a distinctive designation so as to distinguish it from
the shares of all other series and classes, shall fix the number of
shares in such series, and the preferences, rights and restrictions
thereof. All shares of any one series shall be alike in every
particular except as otherwise provided by these Articles of
Incorporation or the Colorado Business Corporation Act.
THIRD: The manner, if not set forth in such amendments, in which any
exchange, reclassification, or cancellation of issued shares provided for in
the amendments shall be effected, is as follows: Not applicable.
DATED: September 4, 1998
NORTHERN DANCER CORPORATION
(Changing its name to U.S. TRUCKING, INC.)
By /s/ Joseph E. O'Connor
Joseph E. O'Connor, President
KRYS BOYLE FREEDMAN & SAWYER, P.C.
Attorneys At Law
600 Seventeenth Street, Suite 2700 South Tower
Denver, CO 80202
Telephone: (303) 893-2300
Facsimile: (303) 893-2882
January 8, 1999
W. Anthony Huff
Executive Vice President
U.S. Trucking, Inc.
10602 Timberwood Circle #9
Louisville, Kentucky 40223
Re: SEC Registration Statement on Form S-8
Gentlemen:
We are counsel for U.S. Trucking, Inc., a Colorado corporation (the
"Company") in connection with its registration under the Securities Act of
1933, as amended (the "Act"), of 2,000,000 shares of common stock which may be
issued upon the exercise of options granted under the Company's 1998 Stock
Option Plan through a Registration Statement on Form S-8 as to which this
opinion is a part, to be filed with the Securities and Exchange Commission
(the "Commission").
In connection with rendering our opinion as set forth below, we have
reviewed and examined originals or copies identified to our satisfaction of
the following:
(1) Articles of Incorporation of the Company as filed with the Secretary
of State of the State of Colorado, as amended.
(2) Minute book containing the written deliberations and resolutions of
the Board of Directors and Shareholders of the Company.
(3) The Registration Statement.
(4) The exhibits to the Registration Statement to be filed with the
Commission.
We have examined such other documents and records, instruments and
certificates of public officials, officers and representatives of the Company,
and have made such other investigations as we have deemed necessary or
appropriate under the circumstances.
Based upon the foregoing and in reliance thereon, it is our opinion that
the 2,000,000 shares of the Company's no par value common stock which may be
issued upon the exercise of options under the 1998 Stock Option Plan will,
upon the purchase, receipt of full payment, issuance and delivery in
accordance with the terms of such options, be duly and validly authorized,
legally issued, fully paid and non-assessable.
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We hereby consent to the filing of this opinion as an exhibit to the
referenced Registration Statement on Form S-8.
Very truly yours,
KRYS BOYLE FREEDMAN & SAWYER, P.C.
By /s/ Jon D. Sawyer
Jon D. Sawyer
SCHUMACHER & ASSOCIATES, INC.
Certified Public Accountants
12835 E. Arapahoe Road, Tower II, Suite 110
Englewood, Colorado 80112
(303) 792-2466 FAX (303) 792-2467
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement of
U.S. Trucking, Inc. (formerly Northern Dancer Corporation) on Form S-8 of our
report dated July 21, 1998, on our audits of the balance sheet of Northern
Dancer Corporation as of March 31, 1998, and the related statement of
operations, changes in stockholders' equity, and cash flows for the year then
ended, which report is included in the Annual Report on Form 10-KSB for the
year ended March 31, 1998.
/s/ Schumacher & Associates, Inc.
SCHUMACHER & ASSOCIATES, INC.
Englewood, Colorado
January 7, 1999
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference of our report dated July 15,
1997, accompanying the financial statements of U.S. Trucking, Inc. (formerly
Northern Dancer Corporation) to Form S-8 Registration Statement of U.S.
Trucking, Inc. (formerly Northern Dancer Corporation) and to the use of
our name and the statements with respect to us, as appearing under the heading
"Experts" in the Registration Statement.
/s/ Hein + Associates LLP
Hein + Associates LLP
Denver, Colorado
January 8, 1999
BANCUILLI, PASCALE & CO. P.C.
9 Endo Blvd.
Garden City, New York 11530
Tel: 516-222-7780 Fax: 516-222-2377
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation in this Registration Statement of U.S.
Trucking, Inc. on Form S-8 of our reports set forth below on the audits set
forth below appearing in the Company's Current Report on Form 8-K dated
September 8, 1998:
Date of Report Entity Audited Period Covered
-------------- -------------- --------------
1. June 10, 1998 U.S. Trucking, Inc. January 31, 1997 through
and Subsidiaries December 31, 1997
2. June 10, 1998 Gulf Northern Transport, January 1, 1997 through
Inc. January 30, 1997
3. June 8, 1998 Mencor, Inc. January 1, 1997 through
January 30, 1997
4. November 7, 1997 Mid America Transporters January 1, 1995 through
Group, Inc. and December 31, 1996
Subsidiaries
5. November 3, 1997 Mencor, Inc. January 1, 1995 through
December 31, 1996
/s/ Bianculli, Pascale & Co. P.C.
Bianculli, Pascale & Co. P.C.
January 8, 1999
