SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8 KSB
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934
December 9, 1997
(Date of Report)
CNH Holdings Company
(Exact name of registrant as specified in its charter)
Nevada
(State or other jurisdiction of incorporation)
0 17304 11 2867201
(Commission File Number) (IRS Employer Identification Number)
1999 Broadway, Ste. 3235, Denver, Colorado 80202
(Address of principal executive offices including zip code)
(303) 292 2992
(Registrant's telephone number including area code)
Not Applicable
(Former name or former address, if changed since last report)
Item 1. Change in Control of Registrant.
On December 9, 1997, CNH Holdings Company, a Nevada corporation
(the Company), entered into a reorganization Agreement (the
Reorganization Agreement) with GNC Corporation, a Nevada corporation
(GNC) and the sole shareholder of GNC, that being DRC, Inc., a
Nevada corporation (DRC), pursuant to which the Company acquired all
of the outstanding proprietary interest of GNC in a share for share
exchange which resulted in GNC becoming a wholly owned subsidiary of
the Company and DRC acquiring control of the Company through its
share ownership. DRC now owns 2,500,000 shares of the common shares
of the Company. Pursuant to the Reorganization Agreement, the
Company appointed Mr. Gerald Cuomo as President.
GNC owns and operates a restaurant and bar in Las Vegas, Nevada,
known as Tune Town, which also has approximately fifteen slot
machines.
Item 2. Acquisition or Disposition of Assets: See Item 1, above.
Item 3. Bankruptcy or Receivership: Not Applicable.
Item 4. Changes in Registrant's Certifying Accountant: Not
Applicable.
Item. 5. Other Events: None.
Item 6. Resignation of Registrant's Directors: Not Applicable.
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits: Not Applicable.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
as amended, Registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
CNH HOLDINGS COMPANY
(Registrant)
By: /s/ Paul M. Lionti
Paul M. Lionti, Chief Executive Officer
Date: December 10, 1997
EXHIBITS
Exhibit 1. Plan and Agreement of Reorganization
AGREEMENT OF PURCHASE
This plan and agreement of purchase (Plan) has been adopted as a
reorganization under Section 368(b) of the Internal Revenue Code and
has been entered into in Denver, Colorado, this 9th day of December,
1997 (Closing Date), between CNH Holdings, Inc., a Nevada
corporation sometimes referred to in this Agreement as the
Purchaser, DRC, Inc., a Nevada corporation sometimes referred to in
this Agreement as the hareholder and GNC Corporation, a Nevada
corporation sometimes referred to in this Agreement as the Acquired
Corporation.
The Purchaser hereby acquires from the Shareholder all of issued and
outstanding capital stock of the Acquired Corporation in exchange
solely for shares of voting stock of the Purchaser. Under this
Plan, the Acquired Corporation has become a wholly owned subsidiary
of CNH.
ARTICLE I
EXCHANGE OF VOTING CAPITAL STOCK
1.01. Transfer and Delivery of GNC Shares. Shareholder hereby
transfers and delivers to Purchaser certificates evidencing all of
the issued and outstanding capital stock of GNC duly endorsed in
blank so as to result in transfer upon delivery.
1.02. Issuance and Delivery of CNH Shares. In exchange for the
transfer by Shareholder to Purchaser of all of the issued and
outstanding Acquired Corporation capital shares hereunder, Purchaser
has (i) issued and delivered to Shareholder 2,500,000 restricted
common shares of CNH (the Stock), (ii) covenanted to invest $100,000
into the business of GNC within 20 days after the Closing Date and
(iii) appointed Mr. Gerald Cuomo as President of CNH.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER AND GNC
2.01. Organization and Standing. GNC is a corporation duly
organized, validly existing and in good standing under the laws of
Nevada, with corporate powers to own property and carry on its
business as it is now being conducted. Copies of the articles of
incorporation of GNC delivered to Purchaser herewith are complete
and accurate as of the Closing Date. GNC is qualified to transact
business as a foreign corporation and is in good standing in all
jurisdictions in which its principal properties are located or is
not required to be qualified as a foreign corporation to transact
business in any other jurisdiction.
2.02. Balance Sheet. A balance sheet dated as of November 30, 1997
(Balance Sheet), has been delivered on the Closing Date. The
Purchaser and GNC will cause the delivery of financial statements
(i) audited in accordance with Generally Accepted Auditing
Standards, (ii) prepared in accordance with Generally Accepted
Accounting Principles applied on a consistent basis and fairly
presenting the financial position of GNC and (iii) complying with
Regulation S X and Form 8 KSB within 75 days after the Closing Date.
2.03. Capitalization. GNC has an authorized capitalization
consisting of 1,000,000 shares, and as of the Closing Date, 25,000
shares are issued and outstanding, all of which are fully paid and
non assessable. There are no outstanding subscriptions, options,
contracts, commitments or demands relating to the authorized but
unissued capital stock of GNC or any other agreements of any
character under which GNC would be obligated to issue or purchase
shares of its capital stock.
2.04. Title to Assets. The Acquired Corporation has good and
marketable title to all of its assets, all as set forth in the
Balance Sheet, none of which are subject to any mortgage, pledge,
lien, charge, security interest, encumbrance or restriction
whatsoever except those that: (a) are disclosed on the Balance Sheet
and/or the footnotes thereto or (b) do not materially and adversely
affect the use of the asset. Further, the assets of GNC are in good
condition and repair, except for reasonable wear and tear.
2.05. Schedule of Assets. The Acquired Corporation will forthwith
deliver to Purchaser a separate schedule of assets, specifically
referring to this paragraph, containing, as of the Closing Date, a
true and complete: (a) legal description of all real property owned
by GNC and any real property in which GNC has a leasehold interest,
(b) aged list of accounts receivable, (c) list of all capitalized
machinery, tools, equipment and rolling stock of GNC that sets forth
any liens, claims, encumbrances, charges, restrictions, covenants
and conditions concerning the listed items, (d) list of all
machinery, tools, equipment and rolling stock in which GNC has a
leasehold interest, with a description of each interest, (e) list of
all patents, patent licenses, trademarks, trademark registrations,
trade names, copyrights and copyright registrations owned by GNC,
(f) list of all fire and other casualty and liability policies of
GNC in effect at the time of delivery of such schedule, and (g) all
proprietary software products, including source codes.
2.06. Liabilities. Except as set forth in the Balance Sheet, GNC
presently has no outstanding indebtedness other than liabilities
incurred in the ordinary course of business or in connection with
the Plan. GNC is not in default with respect to any terms or
conditions of any indebtedness. Further, GNC has not made any
assignment for the benefit of creditors, nor has any involuntary or
voluntary petition in bankruptcy been filed by or against GNC.
2.07. Litigation. GNC is not a party to, nor has it been
threatened with, any litigation or governmental proceeding that, if
decided adversely to it, would have a material and adverse effect on
the Plan, or on the financial condition, net worth, prospects or
business of GNC. To the best of the Acquired Corporation's
knowledge, it is not aware of any facts that might result in any
action, suit or other proceeding that would result in any material
and adverse change in the business or financial condition of GNC.
2.08. Compliance with Law and Instruments. The business and
operations of GNC are not infringing on or otherwise acting
adversely to any copyrights, trademark rights, patent rights or
licenses owned by any other person, and there is not any pending
claim or threatened action with respect to such rights. GNC is not
obligated to make any payments in the form of royalties, fees or
otherwise to any owner of any patent, trademark, trade name or
copyright.
2.09. Contractual Obligations. GNC is not a party to or bound by
any written or oral: (a) contract not made in the ordinary course of
business, (b) contract with any labor union other than in the
ordinary course of business, (c) bonus, pension, profit sharing,
retirement, stock option, hospitalization, group insurance or
similar plan providing employee benefits other than in the ordinary
course of business, (d) any real or personal property lease other
than in the ordinary course of business, (e) advertising contract or
contract for public relations services other than in the ordinary
course of business, (f) purchase, supply or service contracts in
excess of $10,000 each or in the aggregate of $100,000 for all such
contracts other than in the ordinary course of business, (g) deed of
trust, mortgage, conditional sales contract, security agreement,
pledge agreement, trust receipt or any other agreement subjecting
any of the assets or properties of GNC to a lien, encumbrance or
other restriction other than in the ordinary course of business, (h)
term contract continuing for a period of more than one year that is
not terminable at will without liability to GNC or its successors
other than in the ordinary course of business, or (i) a contract
that contains a predetermination of price or similar type of
provision, or which provides for a fixed price for goods or services
sold. GNC has performed all obligations required to be performed by
it to the Closing Date and is not in material default under any of
the contracts, leases or other arrangements by which it is bound.
None of the parties with whom GNC has contractual arrangements are
in default of their obligations.
2.10. Changes in Compensation. Since the date of the Balance
sheet, GNC has not granted any general pay increase to employees or
changed the rate of compensation, commission or bonus payable to any
officer, employee, director, agent or stockholder other than in the
normal course of business.
2.11. Records. All of the account books, minute books, stock
certificate books and stock transfer ledgers of GNC are complete and
accurate.
2.12. Authority. The execution and performance of this Agreement
have been duly authorized by all requisite corporate action. This
Agreement constitutes a valid and binding obligation of CNH in
accordance with its terms. No provision of the articles of
incorporation, bylaws, minutes, share certificates or contracts
prevents CNH from delivering its shares of common stock in the
manner contemplated under the Plan.
2.13. Taxes. GNC has filed all income tax returns and, in each
jurisdiction where qualified or incorporated, all income tax and
franchise tax returns that are required to be filed. GNC has paid
all taxes as shown on the returns as have become due, and has paid
all assessments received that have become due.
2.14. Brokers. All negotiations on the part of Acquired
Corporation and Shareholder related to the Plan have been
accomplished solely by Acquired Corporation and Stockholder without
the assistance of any person employed as a broker or finder.
Acquired Corporation and Shareholder have done nothing to give rise
to any valid claims for a broker's commission, finder's fee or any
similar charge.
2.15. Full Disclosure. As of the Closing Date, GNC and Shareholder
have disclosed all events, conditions and facts materially affecting
the business and prospects of GNC. Shareholder and GNC have not
withed knowledge of any event, condition or fact that they have
reasonable grounds to know may materially affect the business and
prospects of GNC. None of the representations and warranties made
by Shareholder or GNC in this Agreement or in any other instrument
furnished to Purchaser contains any untrue statement of a material
fact, or fails to state a material fact.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
3.01. Organization and Standing. CNH is a corporation duly
organized, validly existing and in good standing under the laws of
Nevada, with corporate powers to own property and carry on its
business as it is now being conducted. Copies of the articles of
incorporation of CNH delivered to Shareholder and GNC herewith are
complete and accurate as of the Closing Date. CNH is qualified to
transact business as a foreign corporation and is in good standing
in all jurisdictions in which its principal properties are located
or is not required to be qualified as a foreign corporation to
transact business in any other jurisdiction.
3.02. Subsidiaries. CNH has no subsidiaries.
3.03. Capitalization. CNH has an authorized capitalization
consisting of 10,000,000 common shares, $.001 par value per share,
and 1,000,000 preferred shares, $.01 par value per share. As of the
Closing Date, 3,450,000 common and no preferred shares are issued
and outstanding, all of which issued and outstanding shares are
fully paid and non assessable.
3.04. Due Delivery. The common CNH shares issued to Shareholder
under the Plan, i.e., the Stock, have been validly authorized and
issued and are fully paid and non assessable. No CNH shareholder
has any preemptive right of subscription or purchase with respect to
these shares.
3.05. Authority. The execution and performance of this Agreement
have been duly authorized by all requisite corporate action. This
Agreement constitutes a valid and binding obligation of CNH in
accordance with its terms. No provision of the articles of
incorporation, bylaws, minutes, share certificates or contracts
prevents CNH from delivering its shares of common stock in the
manner contemplated under the Plan.
3.06. Brokers. All negotiations on the part of CNH related to the
Plan have been accomplished solely by CNH without the assistance of
any person employed as a broker or finder. CNH has done nothing to
give rise to any valid claims for a broker's commission, finder's
fee or any similar charge.
3.07. Full Disclosure. As of the Closing Date, CNH has disclosed
all events, conditions and facts materially affecting the business
and prospects of CNH, and CNH has not withed knowledge of any event,
condition or fact that it has reasonable grounds to know may
materially affect the business and prospects of CNH. None of the
representations and warranties made by CNH in this Agreement or in
any other instrument furnished to Shareholder or GNC contains any
untrue statement of a material fact, or fails to state a material
fact.
ARTICLE IV
SURVIVAL OF WARRANTIES AND WARRANTIES
4.01. Nature and Survival of Representations and Warranties. All
statements of fact contained in this Agreement or in any memorandum,
certificate, letter, document or other instrument delivered by or on
behalf of any of the parties hereto to any other party pursuant to
this Agreement shall be deemed representations and warranties made
by the delivering party to the other parties under this Agreement.
The covenants, representations and warranties of the parties shall
survive the Closing Date for a period of one year, and then they
shall lapse and be of no further effect.
4.02. Expenses. The parties to this Agreement shall pay their own
expenses incurred hereunder and in regards of the transactions
contemplated hereby, including, but not limited to, all fees and
expenses of their respective counsel and accountants.
ARTICLE V
COMPLIANCE WITH SECURITIES LAWS
5.01. Acknowledgments of the Shareholder. The Shareholder
acknowledges, understands and agrees that: (a) The certificate
representing the Stock will bear a legend restricting transfer in
accordance with the exemption from registration under the Securities
Act of 1933, as amended. (b) The Stock has not been registered
under the Securities Act of 1933, as amended, or any applicable
state law (collectively, the Securities Act); further, the Stock may
not be sold, offered for sale, transferred, pledged, hypothecated or
otherwise disposed of except in compliance with the Securities Act;
and, further, the legal consequences of the foregoing mean that the
Shareholder must bear the economic risk of the investment in the
Stock for the requisite period of time. (c) No federal or state
agency has made any finding or determination as to the fairness of
an investment in CNH, or any recommendation or endorsement of this
investment.
5.02. Further Representations and Warranties of Shareholder.
Shareholder hereby represents and warrants to CNH as follows: (a)
I have the financial ability to bear the economic risks of my
investment, have adequate means of providing for my current needs
and personal contingencies, and have no need for liquidity in this
investment; and, further, I have evaluated the high risks of
investing in CNH and have such knowledge and experience in financial
and business matters in general and in particular with respect to
this type of investment that I am capable of evaluating the merits
and risks of any investment in the Stock. (b) I have been given the
opportunity to ask questions of and receive answers from CNH
concerning the terms and conditions of this investment, and to
obtain additional information necessary to verify the accuracy of
the information I desired in order to evaluate my investment, and in
evaluating the suitability of this investment I have not relied upon
any representations or other information (whether oral or written),
other than that furnished to me by CNH or its representatives;
further, I have had the opportunity to discuss with my professional,
legal, tax and financial advisers the suitability of an investment
in the Stock for my particular tax and financial situation; and,
further, in making the decision to purchase the Stock, I have relied
solely upon independent investigations made by me or on my behalf.
(c) I am acquiring the Stock solely for my own personal account,
for investment purposes only, and am not purchasing with a view to,
or for, the resale, distribution, subdivision or fractionalization
thereof.
ARTICLE VI
MISCELLANEOUS
6.01. Amendments. This Agreement may be amended or modified at any
time and in any manner only by an instrument in writing executed by
the Presidents of DRC, GNC and CNH.
6.02. Waiver. Either DRC, GNC or CNH may, in writing, (a) extend
the time for performance of any of the obligations of any other
party to this Agreement, (b) waive any inaccuracies or
misrepresentations contained in this Agreement or any document
delivered pursuant to this Agreement by any other party and/or (c)
waive compliance with any of the covenants, or performance of any
obligations, contained in this Agreement by any other party.
6.03. Assignment. (a) Neither this Agreement nor any right
created hereby shall be assignable by any party without the prior
written consent of the other parties, except by the laws of
succession. (b) Except as limited by subparagraph (a), this
Agreement shall be binding on and inure to the benefit of the
respective successors and assigns of the parties. (c) Nothing in
this Agreement, expressed or implied, is intended to confer upon any
person, other than the parties and their permitted successors, any
rights or remedies under this Agreement.
6.04. Notices. Any notice or other communication required or
permitted by this Agreement must be in writing and shall be deemed
to be properly given when delivered in person to an officer of the
other party, when deposited in the U.S. mails for transmittal by
certified or registered mail, postage prepaid, or when deposited
with a public telegraph company for transmittal, charges prepaid,
provided that the communication is addressed as follows: (a) in case
of DRC or GNC: 4600 S. Ulster, Ste. 240, Denver, CO 80287; and (b)
in case of CNH: 1999 Broadway, Ste. 3235, Denver, CO 80202.
6.05. Headings. Paragraph and other headings contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
6.06. Entire Agreement. This Agreement contains the entire
agreement between the parties relating to the subject matter hereof.
It may be executed in any number of counterparts, but the aggregate
of such counterparts constitute only one and the same instrument.
6.07. Partial Invalidity. In the event that any one or more of the
provisions contained in this Agreement shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement, but this Agreement shall be
construed as if it never contained any such invalid, illegal or
unenforceable provisions.
6.08. Controlling Law. The validity, interpretation and
performance of this Agreement shall be controlled by and construed
under the laws of the State of Nevada.
6.09. Attorney's Fees. If any action at law or in equity,
including any action for declaratory relief, is brought to enforce
or interpret the provisions of this Agreement, the prevailing party
shall be entitled to recover reasonable attorney's fees from the
other party. The attorney's fees may be ordered by the court in the
trial of any action described in this paragraph or may be enforced
in a separate action brought for determining attorney's fees.
6.10. Specific Performance. The parties declare that it is
impossible to measure in money the damages that will accrue to a
party or its successors as a result of any other parties' failure to
perform any of the obligations under this Agreement. Therefore, if
a party or its successor institutes any action or proceeding to
enforce the provisions of this Agreement, any party opposing such
action or proceeding agrees that specific performance may be sought
and obtained for any breach of this Agreement.
Purchaser: CNH Holdings, Inc.:
By: /s/
Authorized Representative
Acquired Corporation: GNC Corporation:
By: /s/
President
Shareholder, DRC, Inc.:
By: /s/
President
