integrated8k10410x10_1072010.htm




Exhibit 10.1


 







 


STOCK EXCHANGE AGREEMENT


 


THIS STOCK EXCHANGE AGREEMENT, made and entered into as of _________  __, 2010, by and among Integrated Freight Corporation, a Florida corporation, (“IFC”), M. W. Bruenger, Commerce Bank and Trust Company as Trustee of the Patricia A. Carr RevocableTrust, Jeffery A. Kroneberger, Patrick W. Kroneberger, Michael S. Kroneberger, Janet M. Haas, and Karen Kay Moody (collectively the “Selling Stockholders”) the holders of all the equity securities of Bruenger Trucking Company, a Kansas corporation, (“Trucking”) which in turn is the owner of all outstanding equity securities of M. Bruenger & Co., Inc. (“Operating”) also a Kansas corporation, (collectively Trucking and Operating are referred to herein as “Bruenger”).


 


W I T N E S S E T H :




 


WHEREAS, IFC (i) has acquired three motor freight carriers, (ii) is registered and files reports under the Securities Exchange Act of 1934, as amended, and (iii) trades on the OTC Bulletin Board under the symbol “IFCR”; and


 


WHEREAS, Bruenger is a motor freight carrier with its headquarters office located in Wichita, Kansas; and


 


WHEREAS, IFC desires to acquire Bruenger as a going concern by the means of an exchange of IFC’s common stock (“IFC’s Securities”) and a cash payment for all of Trucking’s issued and outstanding equity securities (“Bruenger’s Securities”) and thereafter to operate Bruenger as a wholly owned subsidiary; and


 


WHEREAS, the Selling Stockholders desire to exchange all of Bruenger’s Securities that they own respectively for IFC’s Securities and a cash payment and for Bruenger to be acquired by IFC, as contemplated by this Agreement.


 


NOW, THEREFORE, in consideration of the premises herein before set forth, in reliance hereon and the mutual promises and respective representations and warranties of the parties, one to another made herein, and the reliance of each party upon the other(s) based hereon and other good and valuable consideration, the receipt and sufficiency of which the parties respectively acknowledge, the parties agree, for purposes of consummating the transaction(s) contemplated herein, as follows:


 







 


ARTICLE I


PRELIMINARY MATTERS




 


Section 1.01.  Recitals.  The parties acknowledge the recitals herein above set forth in the preamble are correct, and are, by this reference, incorporated herein and are made a part of this Agreement.


 






  





Page 1 of 34











  













 


Section 1.02.  Exhibits and Schedules.  Exhibits (which are documents to be executed and delivered at the Closing by the party identified therein or in the provision requiring such delivery) and Schedules (which are attachments setting forth information about a party identified therein or in the provision requiring such attachment) referred to herein and annexed hereto are, by this reference, incorporated herein and made a part of this Agreement, as if set forth fully herein.


 


Section 1.03.  Use of words and phrases.  Natural persons may be identified by last name, with such additional descriptors as may be desirable.  The words “herein,” “hereby,” “hereunder,” “hereof,” “herein before,” “hereinafter” and any other equivalent words refer to this Agreement as a whole and not to any particular Article, Section or other subdivision hereof.  The words, terms and phrases defined herein and any pronoun used herein shall include the singular, plural and all genders.  The word “and” shall be construed as a coordinating conjunction unless the context clearly indicates that it should be construed as a copulative conjunction.


 


Section 1.04.  Accounting terms.  All accounting terms not otherwise defined herein shall have the meanings assigned to them under generally accepted accounting principles unless specifically referenced to regulatory accounting principles.


 


Section 1.05.  Calculation of time lapse or passage; Action required on holidays.  When a provision of this Agreement requires or provides for the calculation of the lapse or passage of a time period, such period shall be calculated by treating the day on which the event which starts the lapse or passage occurs as zero; provided, that this provision shall not apply to any provision which specifies a certain day for action or payment, e.g. the first day of each calendar month.  Unless otherwise provided, the term “month” shall mean a period of thirty days and the term “year” shall mean a period of 360 days, except that the terms “calendar month” and “calendar year” shall mean the actual calendar period indicated.  If any day on which action is required to be taken or payment is required to be made under this Agreement is not a Business Day (Business Day being a day on which national banks are open for business where the actor or payor is located), then such action or payment shall be taken or made on the next succeeding Business Day.


 


Section 1.06.  Use of titles, headings and captions.  The titles, headings and captions of articles, sections, paragraphs and other subdivisions contained herein are for the purpose of convenience only and are not intended to define or limit the contents of said articles, sections, paragraphs and other subdivisions.


 


Section 1.07.  Terms not otherwise defined within Agreement.


 


(a)  “Knowledge” shall mean the actual knowledge of the person, or, in the case of an entity, the actual knowledge of the officers and directors of such entity.


 






  





Page 2 of 34











  








ARTICLE II


TERMS OF THE TRANSACTIONS


 


Section 2.01. Stock exchange transaction.  In accordance with the terms of this Agreement, on the Closing Date, IFC shall issue and deliver to the Selling Stockholders the IFC’s Securities and make the cash payment, as provided in Section2.02, and the Selling Stockholders shall deliver to IFC all of Bruenger’s Securities.


 


Section 2.02.  Consideration.  In payment and exchange for Bruenger’s Securities, IFC, at Closing, shall pay to the Selling Stockholders the sum of $9,000,000 and deliver 2,000,000 shares of IFC’s Securities to the Selling Stockholders, such payment and IFC’s Securities allocated among the Selling Stockholders as set forth in Schedule 2.02.


 


Section 2.03.  Federal income tax treatment.  At or before the Closing Date, the parties shall agree on the value of each of Bruenger’s significant assets as, if and to the extent required for federal income tax purposes and for GAAP .  Further, Parties will agree, for federal income tax purposes, upon the value of the IFC’s Securities.


 


Section 2.04.  Transaction costs.  Each party shall pay all costs and expenses which it incurs in connection with this Agreement and the transactions contemplated hereby; provided that the Selling Stockholders, jointly, shall pay $100,000 of the fee due to Chapman Associates and IFC shall pay the balance of such fee.  Such payment by the Selling Stockholders, together with their other costs of this transaction, shall be paid by each of the Selling Stockholder’s in accordance with the allocation to each of the consideration at paragraph 2.02, and shall be withheld from the proceeds payable to each Selling Stockholder pursuant to paragraph 2.02.  In addition, IFC shall pay all fees and reimbursable expenses which Bruenger and IFC may incur in the audit of Bruenger’s financial statements.


 


Section 2.05.  Press releases.  No party will issue a press release regarding the subject matter of this Agreement and the transaction contemplated hereby, either before or after closing, without the prior approval thereof by the other party and its counsel.


 







 


ARTICLE III


CLOSING OF THE TRANSACTION


 


Section 3.01.  Location, date and time of the Closing.  The Closing of the transaction contemplated by this Agreement shall take place within Forty-Five (45) days after the execution of this Agreement by all parties ("Closing Date”) or at such other date as the parties shall mutually agree.    The Closing shall take place at a location in Wichita, Kansas agreed to by the parties.  The acts and deliveries which occur on the Closing Date for the purpose of consummating the transactions contemplated by this Agreement and the event itself is referred to herein as the “Closing”.


 


Section 3.02.                                The Selling Stockholders’ and Bruenger’s deliveries at the Closing.  At the Closing, the Selling Stockholders and Bruenger will deliver to IFC:


 



	
(a)  

	
Certificate of good standing in Bruenger’s state of incorporation and all states in which it is required to qualify to do business;







 






  





Page 3 of 34











  













 



	
(b)  

	
Evidence satisfactory to IFC of Bruenger’s licenses and permits in effect to engage in the intra and interstate business of a motor freight carrier;







 



	
(c)  

	
Original certificates representing all of Bruenger’s Securities;







 



	
(d)  

	
Officers’ and Secretary’s Certificates of Bruenger in the form set forth in Exhibits A and B, respectively;







 



	
(e)  

	
A resignation from any member of Bruenger’s board of directors and officers, other than M.W. Bruenger;







 



	
(f)  

	
Action by Bruenger’s board of directors electing Paul A. Henley as a director of Bruenger, to be effective after the Closing;







 



	
(g)  

	
Action by Bruenger’s board of directors approving an employment agreement, or an amendment thereto, with M.W. Bruenger to reflect terms of employment negotiated pursuant to this Agreement, to be effective after the Closing;







 



	
(h)  

	
A non-competition and confidentiality agreement executed by the Selling Stockholders, including M.W. Bruenger, in favor of Bruenger and IFC;







 



	
(i)  

	
The original of Bruenger’s corporate minute book and related documents; and







 



	
(j)  

	
Agreement Not To Compete in the form of Exhibit E.







 


Section 3.03.  IFC’s deliveries at the Closing.  At the Closing, IFC will deliver to the Selling Stockholders:


 



	
(a)  

	
Certificate of good standing in IFC’s state of incorporation and all states in which it is required to qualify to do business;







 



	
(b)  

	
$9,000,000 by wire transfer to the trust account of counsel representing the Selling Stockholders for disbursement to the Selling Stockholders in accordance with 2.02 above;







 



	
(c)  

	
Certificates representing in the aggregate 2,000,000 shares of IFC’s Securities, as provided in Section 2.02, registered in the names of the respective Selling Stockholders as determined by Schedule 2.02, provided the social security number (or taxpayer identification number) of each Selling Stockholder and delivery address is delivered to IFC not less than five business days prior to the Closing; and







 



	
(d)  

	
Officers’ and Secretary’s Certificates of IFC in the form set forth in Exhibits A and B, respectively.







 


Section 3.04.  Closing Memorandum and receipts.  As evidence that all parties deem the Closing to have been completed and the transactions contemplated by this Agreement to have been consummated, the parties jointly will execute and deliver a Closing Memorandum, in the form of Exhibit C, acknowledging such completion and consummation.  Further, Parties shall agree to the valuation items reflected at Section 2.03 above in a written schedule exchanged between the Parties.


 






  





Page 4 of 34











  













 


Section 3.05.  Waiver of conditions.  Notwithstanding Section 11.03, any condition to the Closing which is to the benefit of any party and which is not satisfied prior to or at the Closing, excluding nevertheless any provision of this Agreement which by its terms is to be performed in the future, will be deemed to be waived by the benefited party or otherwise satisfied and waived by virtue of that party executing the Closing Memorandum, excepting from such waiver and satisfaction any such unsatisfied or unperformed condition is expressly preserved by listing it in the Closing Memorandum for satisfaction or performance after the Closing.


 


Section 3.06.  Further assurances.  At any time and from time to time after the Closing, at the reasonable request of any party and without further consideration, any other party(ies) shall execute and deliver such other instruments and documents reasonably desirable or necessary to complete and confirm the transactions contemplated by this Agreement.


 


Section 3.07.  Conditions precedent to IFC’s obligation to Close.  All obligations of IFC hereunder are subject, at the option of IFC, to the fulfillment of each of the following conditions at or prior to the Closing, and Bruenger and the Selling Stockholders shall exert commercially reasonable efforts to cause each of the conditions to be so fulfilled:


 


(a)  All representations and warranties of Bruenger and of the Selling Stockholders contained herein and in any document delivered pursuant hereto shall be true and correct in all material respects when made and shall be deemed to have been made again and given at and as of the date of the Closing of the transaction contemplated by this Agreement, and shall then be true and correct in all material respects, except for changes in the ordinary course of business after the date hereof in conformity with the representations, covenants and agreements contained herein.


 


(b)  All covenants, agreements and obligations required by the terms of this Agreement to be performed by Bruenger and by the Selling Stockholders at or before the Closing shall have been duly and properly performed in all material respects to IFC’s reasonable satisfaction.


 


(c)  Since the date of this Agreement there shall not have occurred any Material Adverse Event.  The term “Material Adverse Event” shall mean any event, occurrence, change in facts, conditions or other change (including a previously undisclosed Material Adverse Event) the result of which has been or would or could reasonably be expected to (i) be negative or adverse to any of the following: Bruenger, its business, prospects (financial or otherwise), operations or results of operations, condition (financial or otherwise), any material properties or assets (including, without limitation, any material contracts) or (ii) result in a suit, action, charge, claim, demand, cost, damage, penalty, fine, liability or other adverse consequence exceeding or could or would reasonably expected to exceed $125,000 and, which ,individually or in the aggregate, would or could cause a reasonable business person to terminate or renegotiate the transaction contemplated by this Agreement.


 


(d)  All documents required to be delivered to IFC by Bruenger and the Selling Stockholders at or prior to the Closing shall have been so delivered.


 






  





Page 5 of 34











  













 


(e)  The transaction contemplated by this Agreement shall have been approved in writing by Bruenger’s board of directors.




 


(f)  IFC shall have received a certificate of good standing for Bruenger and each subsidiary issued by the secretary of state of its state of organization and of each state in which it and its subsidiary is qualified or required to be qualified to do business as a foreign corporation.


 


(g)  IFC shall have received unaudited financial statements of Bruenger for the fiscal years ended December 31, 2009 and unaudited financial statements for each of the interim quarterly periods ended subsequent thereto, which interim quarterly period(s) shall not show any materially adverse results of operation when compared to 2008, the financial condition and performance of Bruenger disclosed in such financial statements being to the reasonable satisfaction of IFC in relation to unaudited financial statements delivered prior to execution and delivery of this Agreement.


 


Section 3.08.  Conditions precedent to the Selling Stockholders’ obligation to Close.  All obligations of the Selling Stockholders at the Closing are subject, at the option of the Selling Stockholders, to the fulfillment of each of the following conditions at or prior to the Closing, and IFC shall exert commercially reasonable efforts to cause each such conditions to be so fulfilled.


 


(a)  All representations and warranties of IFC contained herein or in any document delivered pursuant hereto shall be true and correct in all material respects when made and as of the Closing.


 


(b)  All covenants, agreements and obligations required by the terms of this Agreement to be performed by IFC at or before the Closing shall have been duly and properly performed in all material respects to Bruenger and the Selling Stockholders’ reasonable satisfaction.


 


(c)  All documents required to be delivered to the Selling Stockholders at or prior to the Closing shall have been so delivered.


 


(d)  The transaction contemplated by this Agreement shall have been approved in writing by IFC’s board of directors.


 


(f)  The Selling Stockholders shall have received a certificate of good standing for IFC issued by the secretary of state of its state of organization and of each state in which it is qualified or required to be qualified to do business as a foreign corporation.


 


(g)  With respect to the financial statements of IFC, audited and otherwise, reference is made to IFC’s reports pursuant the Securities Exchange Act of 1934 filed with the U.S. Securities and Exchange Commission.


 






  





Page 6 of 34











  













 


ARTICLE IV


REPRESENTATIONS AND WARRANTIES OF THE PARTIES


 







 


Section 4.01.  Representations and warranties of Bruenger and the Selling Stockholders.  Each of Bruenger (as used in the following representations and warranties with respect to status or condition, Bruenger includes every subsidiary of Bruenger, all of which are identified in Schedule 4.01) and the Selling Stockholders (excluding Selling  Stockholders identified in Schedule 2.02, who are a minority ) represent and warrant, to the best of their knowledge and belief, to IFC, as follows:


 


(a)  Both Trucking and Operating are duly organized and existing entities in good standing under the laws of their state of incorporation and have full corporate power to execute, deliver and perform this Agreement.


 


(b)  Bruenger is qualified to do business and in good standing in each state and jurisdiction in which the nature of its activities and ownership of property require it to be qualified as a foreign corporation.


 


(c)  All licenses required for the conduct of Bruenger’s businesses in intrastate and interstate commerce are in full force and effect, all such licenses being transferable in the event the transactions contemplated pursuant to this Agreement are deemed to be a transfer under applicable statutes and regulations; and, there is no proceeding of any nature pending or, to the best knowledge of Bruenger and the Selling Stockholders, threatened which if determined adversely to Bruenger would result in a revocation, cancellation of or material limitation or restriction on Bruenger and the conduct of its or any subsidiary’s business as it is presently conducted.


 


(d) This Agreement has been duly executed and delivered, and where appropriate, validly authorized by each of the Selling ShareholdersStockholders.  The execution and delivered by Bruenger and and the Selling Stockholders constitutes the legal, valid and binding obligation of Bruenger and the Selling ShareholdersStockholders, respectively, enforceable against ech of them severally, in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization and other laws of, relating to or affecting stockholders and creditors rights generally and to general equitable principles.


 


(e)  To the best knowledge of Bruenger and each of the Selling Stockholders, the execution of this Agreement and consummation of the transactions contemplated hereby does not conflict with and will not result in any adverse consequences to or material breach of any agreement (financing or otherwise), mortgage, instrument, judgment, decree, law or governmental regulation, license, permit or authorization by Bruenger or in the loss, forfeiture or waiver of any rights, license, authorization or franchise owned by Bruenger, from which Bruenger benefits or which is desirable in the conduct of Bruenger’s business.


 






  





Page 7 of 34











  













 


(f)  To the best knowledge of Bruenger and the Selling Stockholders, except for such actions as may have been taken, no further action by or before any governmental body or authority of the United States of America or any state or subdivision  thereof or any self-regulatory body to which Bruenger is subject is required in connection with the execution and delivery of this Agreement by Bruenger and the consummation of the transactions contemplated hereby.


 


 (g)  The information Bruenger has delivered to IFC relating to Bruenger was, to the best knowledge of Bruenger and the Selling Stockholders, on the date reflected in each such item of information, accurate in all material respects and, to the best knowledge of Bruenger and the Selling Stockholders, such information at the date hereof taken as a whole provides full and fair disclosure of all material information relating to Bruenger and does not, to the best knowledge of Bruenger and the Selling Stockholders, omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.


 


(h)  Bruenger has conducted its business in the ordinary course for the last three years or since inception, whichever is less.


 


(i) Neither Bruenger nor any employee, to Bruenger best knowledge, has within the last three years given or agreed to give any gift or similar benefit to any customer, supplier, governmental employee or other person who is or may be or have been in a position to help or hinder Bruenger’s business which might subject Bruenger to damage or penalty in civil, criminal or governmental litigation or proceedings.


 


(j)  Bruenger’s financial statements delivered to IFC have been prepared in accordance with tax return accounting principles consistently applied and maintained throughout the periods indicated, fairly present the financial condition of Bruenger in accordance with such tax return accounting principles in all material respects at the dates and the results of operations for the periods indicated, contain all normally recurring adjustments and do not omit to disclose any contingent, undisclosed or hidden liabilities.  Bruenger’s financial records are maintained in accordance with good business practice.


 


(k) Bruenger has good, marketable and insurable title to all of its properties and assets, including intangible assets, if any, which it owns or uses in its business or purports to own, including, without limitation, those reflected in its books and records and in the balance sheet, both tangible and intangible except for the liabilities and leases reflected in the corporate records and provided to IFC or their representatives to review.  Other than as reflected in such corporate records disclosed to IFC, none of the properties and assets are subject to any mortgage, pledge, lien, charge, security interest, encumbrance, restriction, lease, license, easement, liability or adverse claim of any nature whatsoever, direct or indirect, whether accrued, absolute, contingent or otherwise., except as expressly set forth in the notes to Bruenger’s financial statements or as disclosed to IFC in the course of its review of Bruenger’s records and all have arisen only in the ordinary course of business.  All of the material properties and assets owned, leased or used by Bruenger are in reasonably good operating condition and repair, are suitable for the purposes used, are adequate and sufficient for BRUENGER’s current operations and are directly related to Bruenger’s business.


 






  





Page 8 of 34











  













 


(l)  All of the material contracts, agreements, leases, licenses and commitments of Bruenger (other than those which have been fully performed), copies of all of which have been delivered to IFC, are valid and binding, enforceable in accordance with their respective terms, in full force and effect and with respect to any party thereto, any existing default or event, which after the giving of notice or lapse of time or both, would constitute a default or result in a right to accelerate or loss of rights and none of such contracts, agreements, leases, licenses and commitments is, either when considered singly or in the aggregate with others, unduly burdensome, onerous or materially adverse to Bruenger’s business, properties, assets, earnings or prospects, either before or after the Closing, or which would result in any material loss to or liability of Bruenger.


 


(m)  There is no claim, legal action, suit, arbitration, governmental investigation, or other legal or administrative proceeding, nor any order, decree, judgment or judgment in progress, pending or in effect or to Bruenger’s or the Selling Stockholder’s knowledge threatened, against or relating to Bruenger, its directors, officers or employees with respect to Bruenger or its business or for which Bruenger may have an indemnity obligation, its properties, assets or business or the transaction contemplated by this Agreement and Bruenger does not know or have any reason to be aware of any basis for the same, including any basis for a claim of sexual harassment or racial or age discrimination.


 


(n)  All taxes, including without limitation, income, property, special assessments, sales, use, franchise, intangibles, employees’ income withholding and social security taxes, including employer’s contribution, other than those for which a return or deposit is not yet due and have been disclosed to IFC, imposed by the United States or any state, municipality, subdivision, authority, which are due and payable, and all interest and penalties thereon, unless disputed in good faith in proper proceedings and reserved for or set aside, have been paid in full and all tax returns required to be filed in connection therewith have been accurately prepared and timely filed and all deposits required by law to be made by Bruenger with respect to employees’ withholding and social security taxes have been made.  Bruenger is presently the subject of an audit by the Internal Revenue Service, but is unaware of any adjustments under consideration by the Internal Revenue Service which will exceed, in the aggregate, the amount defined as a “Material Adverse Event” in paragraph 307 (c) above.    There is not now in force any extension of time with respect to the date when a tax return was or is due to be filed, or any waiver or agreement by Bruenger for the extension of time for the assessment of any tax and Bruenger is not a “consenting corporation” within the meaning of Section 341(f)(1) of the Tax Code.


 


(o)  Bruenger does have an existing profit sharing plan subject to ERISA but has no current obligation to make contributions to it.


 


(p)  None of Bruenger’s employees are represented by a collective bargaining agent or subject to a collective bargaining agreement and Bruenger considers its relations with its employees as a whole to be good.  Bruenger has disclosed to IFC all employee salary, compensation and benefit agreements and no employee, other than the M. W. Bruenger, has a written employment agreement.


 






  





Page 9 of 34











  













 


(q)  No person has guaranteed any obligation of Bruenger, and Bruenger has not guaranteed the obligation of any other person, except as set forth in Schedule 4.01(q) or as indicated in Bruenger’s financial statements.


 


(r)  Bruenger and its management have no reason to believe or expect and do not believe or expect that any event or events will occur which will result in Bruenger producing results of operations which are materially different from Bruenger’s recent operations.


 


(s)   Other than Chapman Associates, Bruenger and the Selling Stockholders know of no other broker, firm, or organization that will be due any commission, fees, or other expenses upon the consummation of the transactions contemplated herein.


 


(t)  Each of these representations and warranties are several as between Bruenger and the Selling Stockholders, provided, further that the individual liability of each of the individual Selling Stockholders is limited to the amount of the funds each receives from the proceeds in accordance with Section 2.02 above.


 


Section 4.02.  IFC’s representations and warranties.  IFC represents and warrants to the Selling Stockholders that:


 


(a)  IFC is a duly incorporated and existing corporation in good standing under the laws of its state of incorporation and has full corporate power to execute and deliver this Agreement.  IFC has furnished to Selling Stockholder’s copies of the Bylaws and Articles of IFC and any agreements pertaining to the IFC’s Securities that will be received by Selling Stockholder’s pursuant to this Agreement.


 


(b)  This Agreement has been duly and validly authorized, executed and delivered by IFC and constitutes the legal, valid and binding obligation of IFC, enforceable against IFC in accordance with its terms subject, as to enforceability, to bankruptcy, insolvency, reorganization and other laws of, relating to or affecting shareholders and creditors rights generally and to general equitable principles.


 


(c)  Except for such actions as may have been taken, no further action by or before any governmental body or authority of the United States of America or any state thereof is required in connection with the execution and delivery of this Agreement by IFC and the consummation of the transactions contemplated hereby.


 


(d)  The information IFC have delivered to the Selling Stockholders was on the date reflected in each such item of information accurate in all material respects and such information at the date hereof as a whole did not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.


 


(e)  The information and financial statements of IFC filed pursuant to the Securities Exchange Act of 1934 with the U.S. Securities and Exchange Commission, on the date reflected in each element of information and financial statements, are accurate in all material respects and, to the knowledge of IFC, such information at the date hereof taken as a whole provides, to the best knowledge of IFC, full and fair disclosure of all material information relating to IFC and does not, to the knowledge of IFC omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.


 






  





Page 10 of 34











  













 


(f)  The IFC’s Securities to be issued to the Selling Stockholders have been or will be duly authorized, validly issued and fully paid and non-assessable when delivered to the Selling Stockholders.


 


(g)   Other than Chapman Associates, IFC knows of no other broker, firm, or organization that will be due any commission, fees, or other expenses upon the consummation of the transactions contemplated herein.


 


Section 4.03.  Nature and survival of representation and warranties; Remedies.  All statements of fact contained in this Agreement, any certificate delivered at Closing pursuant to this Agreement, or any letter, document or other instrument delivered by or on behalf of IFC, Bruenger or the Selling Stockholders and their respective officers, pursuant to the terms of this Agreement shall be deemed representations and warranties made by IFC, Bruenger or the Selling Stockholders, respectively, as the case may be, to each other under this Agreement.  For purposes of this Section 4.03 and Section 11.01 only, any party or other person seeking to enforce, or claiming the benefit of, any representation and warranty under this Agreement is called a “Claimant”, and any party or other person against whom a right is claimed is called a “Defendant”.  All representations and warranties of the parties shall survive the Closing; provided, however, that all representations and warranties shall terminate and expire, and be without further force and effect whatever from and after the one year from the date hereof, and neither IFC or the Selling Stockholders shall have any liability whatsoever on account of any inaccurate representation or warranty or for any breach of warranty, unless a Claimant shall, on or prior to the expiration of such one year period, serve written notice on a Defendant, with a copy to the Defendant’s counsel, setting forth in reasonable detail the breach and any direct, incidental or consequential damages (including amounts) the Claimant may have suffered as a result of such breach.  Provided, however, no Claimant shall assert a cause of action or proceeding against a Defendant until the aggregate of all claims by a Claimant exceed, in dollar amount, the sum of Two Hundred Fifty Thousand Dollars ($250,000) at which time a Claimant may assert a cause of action or proceeding against a Defendant for any amount in excess of such threshold amount.


 


ARTICLE V


COVENANTS OF THE PARTIES




 


Section 5.01.  Conduct of business prior to Closing.


 


(a) From the date hereof to the Closing, Bruenger will conduct its business and affairs only in the ordinary course and consistent with its prior practice and shall maintain, keep and preserve its assets and properties in good condition and repair and maintain insurance thereon in accordance with present practices, it will use its best efforts (i) to preserve its business and organization intact, (ii) to keep available to IFC the services of Bruenger’s present employees, agents and independent contractors, (iii) to preserve for the benefit of IFC the goodwill of suppliers, customers, distributors, landlords and others having business relations with it, and (iv) to cooperate and use reasonable efforts to obtain the consent of any landlord or other party to any lease or contract with Bruenger where the consent of such landlord or other party may be required by reason of the transactions contemplated hereby.


 






  





Page 11 of 34











  













 


(b)  From the date hereof to the Closing, Bruenger shall not, outside the ordinary course of business (i) dispose of any material assets, (ii) engage in any extraordinary transactions without IFC’s prior approval, including but not limited to, directly or indirectly, soliciting, entertaining, encouraging inquiries or proposals or entering into negotiation or agreement with any third party for sale of assets by Bruenger not in the ordinary course of business, sale of its equity securities or merger, consolidation or combination with any company, (iii) grant any salary or compensation increase to any employee, or (iv) make any commitment for a material capital expenditure, other than as disclosed to IFC and approved by it.


 


Section 5.02.  Notice of changes in information.  Each party shall give the other party prompt written notice of any change in any of the information contained in their respective representations and warranties made in Article IV, or elsewhere in this Agreement, or the exhibits and schedules referred to herein or any written statements made or given in connection herewith which occurs prior to the Closing.


 


Section 5.03.  Notice of extraordinary changes.  Bruenger shall advise IFC with respect to any of the following events outside of ordinary course of business and which are materially adverse:  (i) any Material Adverse Event, (ii)the entering into and cancellation or breach of contracts, agreements, licenses, commitments or other understandings or arrangements to which Bruenger is a party, (iii) any changes in purchasing, pricing or the Selling policy, or, any changes in its sales, business or employee relations in general, and (iv) the filing or commencement of any litigation or governmental or agency proceedings against Bruenger.


 


Section 5.04.  Action to preserve Bruenger’s business and assets.   Notwithstanding anything contained in this Agreement to the contrary, Bruenger will not take or fail to take any action that in Bruenger’s reasonable business judgment, is likely to give rise to a substantial penalty or a claim for damages by any third party against Bruenger, or is likely to result in losses, or is otherwise likely to prejudice in any material respect or unduly interfere with the conduct of its business and operations in the ordinary course consistent with prior practice, or is likely to result in a breach by Bruenger of any of its representations, warranties or covenants contained in this Agreement (unless any such breach is first waived in writing by IFC).


 


Section 5.05.  Access to information and documents.  Upon reasonable notice and during regular business hours, Bruenger will give to IFC, its attorneys, accountants and other representatives full access to its personnel (subject to reasonable approval as to the time thereof) and all properties, documents, contracts, books and records and will furnish copies of such documents (certified by officers, if so requested) and with such information with respect to its business, operations, affairs and prospects (financial and otherwise) as IFC may from time to time request, and the party to whom the information is provided will not improperly disclose the same prior to the Closing.  Bruenger will afford IFC an opportunity to ask questions and receive answers thereto in furtherance of its duly diligent examination of Bruenger.  Any such furnishing of such information or any investigation shall not affect that party’s right to rely on the other party’s representations and warranties made in this Agreement or in connection herewith or pursuant hereto, except to the extent that written disclosure of information at a variance or in conflict with any such representation or warranty is made and provides specific notice of such variance or conflict.


 






  





Page 12 of 34











  













 


Section 5.06.  Confidential treatment of information.  The provisions of Exhibit D shall be binding upon the parties.


 


Section 5.07.  Cooperation by the parties.  Each party hereto shall cooperate and shall take such further action as may be reasonably requested by any other party in order to carry out the provisions and purposes of this Agreement.  Bruenger shall cooperate with IFC, and its independent public accountant, the cost of which shall be the responsibility of IFC, with respect to an audit of Bruenger’s financial statements and review of interim, stub period financial statements required to enable IFC to file a registration statement pursuant to the 1933 Act or the 1934 Act.  This covenant shall survive the Closing.







 


ARTICLE VI


FEDERAL INCOME TAX MATTERS




 


Section 6.01.  Federal income tax treatment.  Each party shall be responsible for obtaining his, her or its own tax advice with respect to and understanding the federal income tax consequences of the transactions and the federal income tax consequences thereof contemplated by this Agreement and waives any reliance with respect thereto on any other party.  The Selling Stockholders understand the transaction will be taxable to them to the extent of “boot”.




 


ARTICLE VII


SECURITIES LAW MATTERS AND STATUS OF SHARES




 


Section 7.01.  Unregistered shares. IFC’s Securities delivered to the Selling Stockholders are not being registered under the 1933 Act and the securities laws of Kansas or any other state of jurisdiction, and the shares are not transferable, except as permitted under various exemptions contained in the 1933 Act and applicable state securities law.  The provisions contained in the following sections are intended to ensure compliance with the 1933 Act and applicable state securities law.


 


Section 7.02.  No transfers in violation of 1933 Act.  Each of the Selling Stockholders will agree at Closing not to offer, sell, assign, pledge, hypothecate, transfer or otherwise dispose of IFC’s Securities, except after full compliance with all of the applicable provisions of and regulations under the 1933 Act and applicable state securities law.


 






  





Page 13 of 34











  













 


Section 7.03.  Investment intent.  Each of the Selling Stockholders will represent and warrant to and covenant with IFC that he is acquiring IFC’s Securities for his, her or its own account for investment and not with a view to resale or other distribution (except to the extent that the interests of the Patricia A. Carr Revocable Trust are to be distributed in the future in accordance with the terms of such trust indenture) that he, she or it currently has no intention of selling, assigning, transferring, pledging, hypothecating or otherwise disposing of all or any part thereof at any particular time, for any particular price, or on the happening of any particular event or circumstance; and he, she or it will acknowledge that he, she or it understands IFC is relying on the truth and accuracy of his, her or its covenants, warranties and representations in issuing IFC’s Securities without first registering them under the 1933 Act.


 


Section 7.04.  Investment legend on certificates.  The Selling Stockholders will further agree that the certificates evidencing IFC’s Securities shall contain the following legend or a legend of similar import:


 


THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND IS A “RESTRICTED SECURITY” AS DEFINED UNDER SAID ACT.  ACCORDINGLY, NEITHER THIS SECURITY NOR ANY INTEREST THEREIN MAY BE SOLD, OFFERED FOR SALE, ASSIGNED, TRANSFERRED, PLEDGED OR HYPOTHECATED, EXCEPT BY BONA FIDE GIFT OR INHERITANCE, IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THIS SECURITY UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED.


 


Section 7.05.  Subsequent registration.  If, at any time after the Closing, IFC files a registration statement under the Securities Act of 1933, as amended, or any successor statue then in effect, covering a sale or issuance by IFC or any other stockholder of IFC of shares of the common or preferred stock of IFC, then in such event IFC agrees to mail a written notice to the Selling Stockholders at their address of record with IFC notifying the Selling Stockholders of the intent of IFC to file such registration statement.  Within sixty days after the mailing of such notice, any of the Selling Stockholders may deliver a written request to IFC stating the intent of the Selling Stockholder to offer some or all of their IFC’s Securities for disposition and/or registration.  IFC will then use its best efforts to include such shares in the registration statement and related underwriting arrangements.  If the offering by IFC or other Selling Stockholders is in fact underwritten any IFC’s Securities acquired by the Selling Stockholders and for which notification was given pursuant to this Agreement will be underwritten by the same underwriter or underwriters on the same basis as all of the shares being then underwritten all without additional cost to the Selling Stockholders, other than discounts, concessions, commissions and other selling compensation related to the respective Selling  sale of his or her shares.  In the event of the death of a Selling Stockholder, his or her estate, or successors in interest shall be entitled to participate in a similar fashion.   This section and the rights and obligations herein contained shall survive the Closing, and notwithstanding the other provisions of this Agreement, shall remain a permanent obligation of IFC to the Selling Stockholders.


 






  





Page 14 of 34











  













 


Section 7.06   Rule 144 Sale of IFC’s Securities.  If the IFC’s Securities received by the Selling Stockholders are not registered pursuant to Section 7.05 above within one (1) year of the Closing Date, then and in the event counsel for the Selling Stockholders (individually or as a group) determine that the IFC’s Securities received by the Selling Stockholders will qualify under Title 17, Section 230.144 of the Securities Act of 1933 (“Rule 144”) as unregistered securities that may be sold, IFC agrees to use its best efforts to assist the Selling Stockholders in the sale of their IFC’s Securities by providing to the Selling Stockholders the appropriate information regarding IFC necessary for such a sale to take place.  Provided, however, this requirement shall not require IFC to expend significant time or resources without appropriate compensation from the Selling Stockholders for such expenditures.


 


ARTICLE VIII


TERMINATION PRIOR TO CLOSING




 


Section 8.01.  Termination for default.  IFC may, by notice to Bruenger and the Selling Stockholders given in the manner provided below on or at any time prior to the Closing Date, terminate this Agreement if default shall be made by Bruenger in the observance or in the due and timely performance of any material covenants and agreements contained in this Agreement, made by Bruenger pursuant to or imposed upon it in this Agreement, if the default has not been fully cured within fifteen days after receipt of the written notice specifying the default.


 


Section 8.02.  Termination for failure to Close.  If the Closing does not occur on or before the date provided in Section 3.01, any party, if that party is not then in default in the observance or in the due or timely performance of any covenants and conditions under this Agreement, may at any time terminate this Agreement by giving written notice to the other parties; provided, that the parties may extend the Closing date in writing.


 


Section 8.03.  Termination for loss of bargain.  IFC may, at its option, terminate this Agreement prior to the Closing if (i) in completion of its due diligence examination of Bruenger, it discovers the existence of a material, adverse variance from its due diligence examination prior to the date of this Agreement, or (ii) the business or assets of BRUENGER have suffered any material damage, destruction or loss (whether or not covered by insurance), or (iii) Bruenger is prevented by order of court or administrative action from consummating the transactions contemplated by this Agreement, whether or not Bruenger has exhausted its appeals.


 






  





Page 15 of 34











  













 


ARTICLE IX


NOTICES




 


Section 9.01.  Procedure for giving notices.  Any and all notices or other communications required or permitted to be given under any of the provisions of this Agreement shall be in writing and shall be deemed to have been duly given when personally delivered (excluding telephone facsimile and including receipted express courier and overnight delivery service) or mailed by first class certified U.S. mail, return receipt requested showing name of recipient, addressed to the proper party.


 


Section 10.02.  Addresses for notices. For purposes of sending notices under this Agreement, the addresses of the parties are as follows:


 



	
As to Bruenger and the Selling Stockholders, before Closing:

	
 


M.W. Bruenger, President


	  	
M. Bruenger & Co., Inc.


	  	
6250 North Broadway


	  	
Wichita, KS 67219


	  	  
	  	  
	
As to the Selling Stockholders, after Closing:

	
M.W. Bruenger


	  	
M. Bruenger & Co., Inc.


	  	
6250 North Broadway


	  	
Wichita, KS 67219


	
 


Copy to:

	
 


Gary Austerman


1600 Epic Center, 301 N. Main


Wichita, KS 67202


	
 


Copy to:

	
 


Jeffery A. Kroneberger


323 S. 1850 East,


Springville UT 84663


	
 


Copy to:

	
 


Eric J. Larson


600 Epic Center, 301 N. Main


Wichita, KS 67202


	
Copy to:

	
The Commerce Trust Company


PO Box 637


Wichita, KS 67201-0637


Attn:  R. Eric Ireland


 


	  	  
	
As to IFC

	
Paul A. Henley, President


	  	
Intgrated Freight Corporation


	  	
Suite 200


	  	
6371 Business Boulevard


	  	
Sarasota, FL 34240


	  	  
	
Copy to:

	
Jackson L. Morris, Esq.


	  	
3116 W. North A Street


	  	
Tampa, FL 33609







 


Section 9.03.  Change of address.  A party may change its address for notices by sending a notice of such change to all other parties by the means provided in Section 9.01.


 


 


ARTICLE X


LEGAL AND OTHER COSTS




 


Section 10.01.  Party entitled to recover.  In the event that any party (the “Defaulting Party”) defaults in his or its obligation under this Agreement and, as a result thereof, the other party (the “Non-Defaulting Party”) seeks to legally enforce his or its rights hereunder against the Defaulting Party (whether in an action at law, in equity or in arbitration), then, in addition to all damages and other remedies to which the Non-Defaulting Party is entitled by reason of such default, the Defaulting Party shall promptly pay to the Non-Defaulting Party an amount equal to all costs and expenses (including reasonable attorneys’ fees and expert witness fees) paid or incurred by the Non-Defaulting Party in connection with such enforcement.


 


Section 10.02.  Interest.  In the event the Non-Defaulting Party is entitled to receive an amount of money by reason of the Defaulting Party’s default hereunder, then, in addition to such amount of money, the Defaulting Party shall promptly pay to the Non-Defaulting Party a sum equal to interest on such amount of money accruing at the rate of 1.5% per month during the period between the date such payment should have been made hereunder and the date of the actual payments thereof.







 


ARTICLE XI


MISCELLANEOUS




 


Section 11.01.  Effective date.  The effective date of this Agreement shall for all purposes be the date set forth in first paragraph hereof notwithstanding a later actual date of execution by any individual party.


 


Section 11.02.  Entire agreement.  This writing constitutes the entire agreement of the parties with respect to the subject matter hereof, superseding all prior agreements, understandings, representations and warranties.


 


Section 11.03.  Waivers.  No waiver of any provision, requirement, obligation, condition, breach or default hereunder, or consent to any departure from the provisions hereof, shall be considered valid unless in writing and signed by the parving such waiver, and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or similar nature.


 






  





Page 16 of 34











  













 


Section 11.04.  Amendments.  This Agreement may not be modified, amended or terminated except by a written agreement specifically referring to this Agreement signed by all of the parties hereto and amendment, modification or alteration of, addition to or termination of this Agreement or any provision of this Agreement shall not be effective unless it is made in writing and signed by the parties.


 


Section 11.05.  Construction.  This Agreement has been negotiated by the parties, section by section, and no provision hereof shall be construed more strictly against one party than against another party by reason of such party having drafted such provision.  The order in which the provisions of this Agreement appear are solely for convenience of organization; and later appearing provisions shall not be construed to control earlier appearing provisions.


 


Section 11.06.  Invalidity.  It is the intent of the parties that each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law.  If any provision hereof shall be prohibited, invalid, illegal or unenforceable, in any respect, under applicable law, such provision shall be ineffective to the extent of such prohibition, invalidity or non enforceability only, without invalidating the remainder of such provision or the remaining provisions of this Agreement; and, there shall be substituted in place of such prohibited, invalid, illegal or unenforceable provision a provision which nearly as practicable carries out the intent of the parties with respect thereto and which is not prohibited and is valid, legal and enforceable.


 


Section 11.07.  Multiple counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be an original and, taken together, shall be deemed one and the same instrument.


 


Section 11.08.  Assignment, parties and binding effect.  This Agreement, and the duties and obligations of any party shall not be assigned without the prior written consent of the other party(ies).  This Agreement shall benefit solely the named parties and no other person shall claim, directly or indirectly, benefit hereunder, express or implied, as a third-party beneficiary, or otherwise.  Wherever in this Agreement a party is named or referred to, the successors (including heirs and personal representative of individual parties) and permitted assigns of such party shall be deemed to be included, and all agreements, promises, covenants and stipulations in this Agreement shall be binding upon and inure to the benefit of their respective successors and permitted assigns.


 


Section 11.09.  Survival of representations and warranties.  The representations and warranties made herein shall survive the execution and delivery of this Agreement and full performance hereunder of the obligations of the representing and warranting party, subject to the provisions of Section 4.03.


 


Section 11.10.  Jurisdiction and venue.  Any action or proceeding for enforcement of this Agreement and the instruments and documents executed and delivered in connection herewith which is determined by a court of competent jurisdiction not, as a matter of law, which seeks injunctive relief shall be brought and enforced in the courts of the State of Kansas and in Sedgwick County, Kansas and the parties irrevocably submit to the jurisdiction of each such court in respect of any such action or proceeding.


 






  





Page 17 of 34











  













 


Section 11.11.  Applicable law.  This Agreement and all amendments thereof shall be governed by and construed in accordance with the law of the State of Kansas applicable to contracts made and to be performed therein (not including the choice of law rules thereof).




 


Section 11.12 AJEs, Legal Fees, Director Fees.  Parties acknowledge and agree that any adjusting journal entries attributable to the examination of the books and records of Bruenger by certified public accountants hired by Buyer’s shall not occasion any adjustment to the purchase price or give rise, independently, to any indemnification obligation on Selling Shareholders.  Parties further agree that, prior to or after Closing, Bruenger shall pay the legal fees incurred by Bruenger and Selling Shareholders in the negotiation and closing of this transaction (not to exceed Fifteen Thousand Dollars) and director fees in the amount normally paid by Bruenger in years past.


 


 






  





Page 18 of 34











  













 


IN WITNESS WHEREOF, the parties hereto have caused this agreement to be signed by their respective officers thereunto duly authorized and their respective corporate seals to be hereunto affixed, the day and year first above written.


 







 



	
[Corporate Seal]

	
Integrated Freight Corporation.


	  	  
	
Attest:

	
By:  ___________________


	  	
Paul A. Henley, President


	
___________________

	  
	
Jackson L. Morris, Secretary

	  
	  	  
	
[Corporate Seal]

	
M. Bruenger & Co., Inc.


	  	  
	
Attest:

	
By:  ___________________


	  	
M.W. Bruenger, President


	
___________________

	  
	
_____________, Secretary

	  
	  	  
	  	
Selling Stockholders:


________________________________


M.W. Bruenger


 


________________________________


Eric Ireland, Senior Vice President and Trust Officer, Commerce Bank and Trust CompanyTrustee of the Patricia A. Carr Revocable Trust


 


________________________________


Jeffery A. Kroneberger


 


________________________________


Patrick W. Kroneberger


 


________________________________


Michael S. Kroneberger


 


________________________________


Karen K. Moody


 


	  	

________________________________




Janet M. Haas












 






  





Page 19 of 34











  













 


EXHIBIT “A”







OFFICERS’ CERTIFICATE


 







 


Pursuant to Section 3.0__ of the Stock Exchange Agreement identified within


 


The undersigned, ____________, President, and __________, Treasurer, of ________________, a ___________ corporation (the “Corporation”), hereby each certifies that he is familiar with the Stock Exchange Agreement, dated ________________,  (the “Agreement”), between the Corporation and ____________ and, to the best of his knowledge, based on reasonable investigation:


 


(a)  All representations and warranties of the _____________ (as defined in the Agreement) contained in the Agreement, and in all Exhibits and Schedules attached thereto containing information delivered by ___________, were true and correct in all material respects when made and when deemed to have been made and are true and correct at the date hereof, except for changes in the ordinary course of business between the date of the Agreement, in conformity with the covenants and agreements contained in the Agreement.


 


(b)  All covenants, agreements and obligations required by the terms of the Agreement to be performed by _______________ at or before the Closing have been duly and properly performed in all material respects.


 


(c)  Since the date of the Agreement there have not occurred any material adverse change in the condition or prospects (financial or otherwise), business, properties or assets of the ____________________.


 


IN WITNESS WHEREOF, each of the undersigned has executed this certificate this ________________, .


 







 


_______________, President


 







 


_______________, Treasurer


 






  





Page 20 of 34











  








EXHIBIT “B”







SECRETARY’S CERTIFICATE


 







 


Pursuant to Section 3.0__ of the Stock Exchange Agreement identified within.


 


I, ___________, the duly elected, qualified and acting Secretary of _________________, a corporation duly organized, existing and in good standing under the laws of ____________, (the “Corporation”) do hereby certify that:


 


(i)  The following is a true and complete copy of Resolution of the Board of Directors of the Corporation taken and adopted on ________________, , approving the Stock Exchange Agreement dated ________________, , by and among the Corporation and _____________, and that said Resolution has not been rescinded, revoked or modified and is in full force and effect at the date hereof:


 


(ii)  The persons whose names, titles and signatures appear below are each the duly elected, qualified and acting officers of the Corporation, hold on the date hereof the offices set forth opposite their respective names and the signatures appearing opposite said names are the genuine signatures of said persons:


 



	
Name                                

	
Title

	
Signature


	
________________

	
President

	
___________________________


	
________________

	
Secretary

	
___________________________


	
________________

	
Treasurer

	
___________________________







(iii)  I am authorized by the Corporation to make the within certifications.


 


IN WITNESS WHEREOF, I have executed this Certificate on ________________, .


 


(CORPORATE SEAL)


 


_________________, Secretary


 


I, ______________, President of _______________, a __________ corporation, hereby certify that ______________ is  duly elected, qualified and acting Secretary of ______________ and that the signature appearing above is his genuine signature.


 


IN WITNESS WHEREOF, I have executed this Certificate on ________________, .


 







 


__________________, President


 






  





Page 21 of 34











  








Exhibit “C”







CLOSING MEMORANDUM


 







 


The undersigned parties to that certain Stock Exchange Agreement dated ________________, , (“Agreement”) do hereby certify one to the other that;


 


1.  The Closing of the Agreement was completed, as contemplated by the Agreement, on ________________, at ____ o’clock __.m.


 


2.  All conditions to each of the parties Closing the Agreement have been satisfied and, to the extent not specifically satisfied, have been waived by the party entitled to waive the conditions; except, the following conditions, if any, are waived only for the purpose of Closing of the transaction contemplated by the Agreement, and are required to be satisfied after the Closing by the party required to satisfy such condition:


 


[insert any such conditions and name of the party required to satisfy it]


 


3.  Capitalized terms herein have the meaning assigned to them in the Stock Exchange Agreement.


 


For the purposes herein set forth, the parties have executed this Memorandum at the date and time written above.


 



	
[Corporate Seal]

	
Intgrated Freight Corporation


	  	  
	
Attest:

	
By:  ___________________


	  	
Paul A. Henley, President


	
___________________

	  
	
Jackson L. Morris, Secretary

	  
	  	  
	
[Corporate Seal]

	
M. Bruenger & Co., Inc.


	  	  
	
Attest:

	
By:  ___________________


	  	
M.W. Bruenger, President


	
___________________

	  
	
_____________, Secretary

	  
	  	  
	  	  
	  	
Selling Stockholders:


________________________________


M.W. Bruenger


 


________________________________


Eric Ireland, Senior Vice President and Trust Officer, Commerce Bank and Trust Company, Trustee of the Patricia A. Carr Revocable Trust


 


________________________________


Jeffery A. Kroneberger


 


________________________________


Patrick W. Kroneberger


 


________________________________


Michael S. Kroneberger


 


________________________________


Karen K. Moody



 




________________________________


Janet M. Haas


 












 






  





Page 22 of 34











  








 EXHIBIT “D”







Treatment of Confidential Information


 







 


The mutual objective of the parties under the Stock Exchange Agreement to which this Exhibit “D” is attached and incorporated by reference is to provide appropriate protection for Confidential Information while exchanging Confidential Information (defined below) for the parties’ mutual benefit and maintaining their ability to conduct their respective business activities.  Each party agrees the following terms apply when a party (the “Discloser”) discloses information to the other (the “Recipient”) under this Agreement.  The consideration for this Agreement is the disclosures which a party makes to the other in reliance on this Agreement.


 


1.  Each party agrees and acknowledges that many of the other’s Confidential Information (as described below) is considered to be trade secrets, confidential, proprietary and not readily accessible to the public.  Each party believes that its own Confidential Information represents a legitimate, valuable and protectible interest and gives it a competitive advantage, which otherwise would be lost if its Confidential Information was improperly disclosed or revealed.


 


2.  The Recipient shall not, at any time without the express written permission of the Discloser, disclose the Discloser’s Confidential Information directly or indirectly to any person or entity, except the Recipient may disclose the Confidential Information to the Recipient’s Employees, Contractors and Agents (as defined below) during the term of this Agreement if such Employees, Contractors and Agents have a need to know the Confidential Information in order to complete any purpose for which the Confidential Information is disclosed.  The Recipient shall have entered into non-disclosure agreements with such Employees, Contractors, and Agents having obligations of confidentiality as strict as those herein prior to disclosure to such employees, contracts, and agents to assure against unauthorized use or disclosure. The Recipient shall not use or threaten to use Confidential Information in any way that is inconsistent with the provisions of this Agreement or contrary to the instructions or interests of the Discloser.  The Recipient shall not, directly or indirectly, intentionally or negligently allow or assist others in using the Discloser’s Confidential Information in any way inconsistent with the provisions of this Agreement or contrary to the instructions or interests of the Discloser.  The Recipient agrees not to use Confidential information for its own benefit, unless specifically authorized so to do in writing by the Disclose.


 






  





Page 23 of 34











  













 


3.  Each party recognizes and acknowledges that the improper disclosure or use of the Discloser’s Confidential Information would cause irreparable injury to the Discloser by jeopardizing, compromising, and perhaps eliminating the competitive advance the Discloser holds or may hold because of the existence and secrecy of the Confidential Information or would provide an unjustly obtained advantage to the Recipient.  Thus, each party acknowledges and agrees that monetary damages shall not be a sufficient remedy for the Discloser in the event of any breach or threatened breach of this Agreement.  Therefore, each party stipulates and warrants that in the event a Recipient breaches, or reasonably threatens to breach, this Agreement, the Discloser party shall be entitled, without waiving any other rights or remedies in law or in equity, to such injunctive and/or other equitable relief, without (a) having to show or prove irreparable harm as may be deemed proper by a court of competent jurisdiction and (b) the requirement imposed by the Court for posting bond which requirement is hereby specifically and knowingly waived.


 


4.  The Recipient agrees to use the same care and discretion to avoid improper disclosure, publication or dissemination of the Disclosure’s Confidential Information as it uses with its own similar information that it does not wish to disclose, publish or disseminate, but in no event less than reasonable and prudent care.


 


5.  As used in this Agreement the “Confidential Information” means all tangible and intangible information that is disclosed by the Discloser to the Recipient (either orally, or by visual inspection, and/or in writing), including but not limited to (a) currently available and planned products and services; (b) information regarding distributors, suppliers, developers, contractors and funding sources; (c) financial and management information; (d) product information; (e) research and/or development information; (f) information pertaining to actual and/or potential customers, suppliers, and/or strategic alliances; (g) information of a confidential or private nature relating to Employees and Agents (as defined below); (h) financial data and information; (i) business plans; (j) marketing materials and/or strategies; (k) legal matters, including current and/or potential contracts and/or litigation; (l) in-house e-mail, Internet, security, and/or other systems; (m) information received by the Discloser from third parties that the Discloser is obligated to treat as confidential; and/or (n) any and all information regarding the foregoing that the Discloser discloses to the Recipient.  Failure to include a confidentiality notice on any materials disclosed to the Recipient shall not give rise to inference that the information disclosed is not confidential.  Confidential Information disclosed to the Recipient by any parent corporation, subsidiary, agent and/or affiliated entities of the Discloser or by persons that owe the obligation of confidentiality to the Discloser, whether by contract or otherwise, is also covered by this Agreement.


 


“Employees and Agents” shall mean the employees, agents, representatives, consultants and independent contractors affiliated with each of us separately.


 






  





Page 24 of 34











  













 


6.  Confidential Information shall not include any information which the Recipient can, by clear and convincing evidence, establish:


 


(a)  Is or subsequently becomes publicly available without the Recipient’s breach of any obligation owed to the Discloser under this Agreement;


 


(b)  Was rightfully in the possession of or known to the Recipient prior to the Discloser’s disclosure of such information to the Recipient, as evidenced by documentation on record at the time of disclosure;


 


(c)  Became known to the Recipient from a source independent from the Discloser and such independent source did not breach an obligation of confidentiality owed to the Discloser;


 


(d)  Was independently developed by the Recipient without any breach of this Agreement; or


 


(e)  Was originally disclosed as Confidential Information hereunder but which the Discloser thereafter authorizes the Recipient to use and/or disclose, and such authorization is in writing which is signed by authorized representatives of the parties;


 


(f)  Becomes available to the Receiving Party by wholly lawful inspection or analysis of products offered for sale; or


 


(g)  Is transmitted by a party after receiving written notification from the other party that it does not desire to receive any further Confidential Information.


 


The Receiving Party may disclose Confidential Information nevertheless pursuant to a valid order issued by a court or government agency, provided that the Receiving Party provides the Disclosing Party (i)  prior written notice of such obligation; and (ii) the opportunity to oppose such disclosure or obtain a protective order.


 


7.  The Recipient shall notify the Discloser immediately upon discovery of any unauthorized disclosure of the Confidential Information, or any other breach of this Agreement by the Recipient and/or the Recipient’s Employees and/or Agents, and will cooperate with the Discloser in every reasonable way at the Recipient’s sole cost and expense to prevent its further unauthorized disclosure and/or further breach of this Agreement.


 


8.  Neither this Agreement nor any disclosure of Confidential Information hereunder grants the Recipient any rights or license under any trademark, copyright or patent now or hereafter owned or controlled by the Discloser.


 






  





Page 25 of 34











  








9.  The Recipient acknowledges and agrees that its limited right to evaluate the Discloser’s Confidential Information shall immediately expire at the completion of the purpose for which the Confidential Information is delivered, if this Agreement is not terminated earlier and then, in that event, the Recipient’s right to evaluate such Confidential Information shall immediately terminate.  The Recipient therefore agrees to return any and all Confidential Information of the Discloser that is in a tangible form, including all originals, copies reproductions, and summaries thereof, to the Discloser within five business days of the date this Agreement expires or is terminated, whichever occurs first, or upon the Discloser’s request, and to also completely erase and destroy any and all copies of all portions of any and all software comprising the Confidential Information in its possession and/or under its responsibility or control which may have been loaded onto the computers of the Recipient and/or its Employees and Agents.


 


10.  This Agreement shall continue from the date last written below until terminated by either party by giving thirty days’ written notice to the other party of its intent to terminate this Agreement.  Information disclosed pursuant to this Agreement will be subject to the terms of this Agreement for five years following the termination of this Agreement.


 


11.  The terms of confidentiality under this Agreement shall not be construed to limit either party’s right to independently develop or acquire products without use of the other party’s Confidential Information. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Accordingly, nothing in this Agreement prohibit the Receiving Party from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that the Receiving Party does not violate any of its obligations under this Agreement in connection with such development.  Further, either party shall be free to use for any purpose the “residuals,” provided that such party shall not use in any manner information that is considered Confidential Information under this Agreement and shall maintain the confidentiality of the Confidential Information as provided herein.  The term “residuals” means ideas, concepts, know-how or techniques that may be generated, developed or conceived by the Receiving Party in connection with reviewing the Confidential Information and in no circumstance shall “residuals” be deemed to include Confidential Information.  Neither party shall have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals.


 


12.  The Receiving Party shall not remove, overprint or deface any notice of confidentiality, copyright, trademark, logo, legend, or other notices of ownership or confidentiality from any originals or copies of Confidential Information it obtains from the Disclosing Party.


 


13.  CONFIDENTIAL INFORMATION IS PROVIDED “AS IS” WITH ALL FAULTS. IN NO EVENT SHALL THE DISCLOSING PARTY BE LIABLE FOR THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION.  None of the Confidential Information disclosed by the parties constitutes any representation, warranty, assurance, guarantee or inducement by either party to the other with respect to the infringement of trademarks, patents, copyrights; any right of privacy; or any rights of third persons.


 






  





Page 26 of 34











  













 


14.  The parties acknowledge that the Confidential Information disclosed by each of them under this Agreement may be subject to export controls under the laws of the United States. Each party shall comply with such laws and agrees not to knowingly export, re-export or transfer Confidential Information of the other party without first obtaining all required United States or other governmental authorizations or licenses.


 


15.  The parties hereto are independent contractors. Neither this Agreement nor any right granted hereunder shall be assignable or transferable by operation of law or otherwise.  Any such purposed assignment shall be void.


 







 







 






  





Page 27 of 34











  













EXHIBIT “E”







AGREEMENT NOT TO COMPETE


 







 


THIS AGREEMENT NOT TO COMPETE, made and entered into as of _________ ___, 2010, by and between Intgrated Freight Corporation, a Florida corporation, (“IFC”) and Bruenger Trucking Company and M. Bruenger & Co., Inc., both Kansas corporations, (jointly and severally, the “Benefited Party(ies)”), and the Selling Stockholders (as below defined) individually (with respect to each, the “Restricted Party”).


 


W I T N E S S E T H :


 


WHEREAS, IFC has exchanged the issued and outstanding equity securities of Bruenger pursuant to a Stock Exchange Agreement dated as of _________ ___, 2010 between IFC and the Selling Stockholders as defined in such Agreement; and


 


WHEREAS, Bruenger was wholly owned by the Selling Stockholders who personally benefits from such exchange; and


 


WHEREAS, the Benefited Parties have required as a condition for the exchange of Bruenger’s Securities, as defined in the Stock Exchange Agreement that the Restricted Party enter into this Agreement Not To Compete as a means of protecting the value of Bruenger; and


 


NOW, THEREFORE, in consideration of the premises herein before set forth, in reliance hereon and the mutual promises of the parties, one to another made herein, and the reliance of each party upon the other(s) based hereon and other good and valuable consideration, the receipt and sufficiency of which the parties acknowledge, the parties agree, as follows:




 


ARTICLE I


PRELIMINARY MATTERS




 


Section 1.01.  Recitals.  The parties acknowledge the recitals herein above set forth in the preamble are correct, are, by this reference, incorporated herein and are made a part of this Agreement.


 


Section 1.02.  Use of words and phrases.  Natural persons may be identified by last name, with such additional descriptors as may be desirable.  The words “herein,” “hereby,” “hereunder,” “hereof,” “herein before,” “hereinafter” and any other equivalent words refer to this Agreement as a whole and not to any particular Article, Section or other subdivision hereof.  The words, terms and phrases defined herein and any pronoun used herein shall include the singular, plural and all genders.  The word “and” shall be construed as a coordinating conjunction unless the context clearly indicates that it should be construed as a copulative conjunction.


 






  





Page 28 of 34











  













 


Section 1.03.  Accounting terms.  All accounting terms not otherwise defined herein shall have the meanings assigned to them under generally accepted accounting principles unless specifically referenced to regulatory accounting principles.


 


Section 1.04.  Calculation of time lapse or passage; Action required on holidays.  When a provision of this Agreement requires or provides for the calculation of the lapse or passage of a time period, such period shall be calculated by treating the event which starts the lapse or passage as zero; provided, that this provision shall not apply to any provision which specifies a certain day for action or payment, e.g. the first day of each calendar month.  Unless otherwise provided, the term “month” shall mean a period of thirty days and the term “year” shall mean a period of 360 days, except that the terms “calendar month” and “calendar year” shall mean the actual calendar period indicated.  If any day on which action is required to be taken or payment is required to be made under this Agreement is not a Business Day (Business Day being a day on which national banks are open for business where the actor or payor is located), then such action or payment shall be taken or made on the next succeeding Business Day.


 


Section 1.05.  Use of titles, headings and captions.  The titles, headings and captions of articles, sections, paragraphs and other subdivisions contained herein are for the purpose of convenience only and are not intended to define or limit the contents of said articles, sections, paragraphs and other subdivisions.




 


ARTICLE II


COVENANTS




 


Section 2.01.  Restrictive Covenant.  The Restricted Party shall not enter into or engage in any business in competition with the business of Bruenger or as it may be conducted in the future by Bruenger (the “Protected Business”) either as an individual on his own account, or as a partner, joint venturer, employee, agent, or consultant for any person, or as a director, officer or stockholder (other than as a passive investor) of a corporation or other enterprise, or otherwise, in the territory served by such business during the term of and for a period of one year after the date of the Restricted Party’s termination of employment by IFC or Bruenger.  The parties acknowledge that even though the Restricted Party has been engaged as the founder, owner and employee of Bruenger, the Restricted Party acknowledges that (a) he believes he will be able to engage in a livelihood apart from the activities which are prohibited by this Agreement during the specified period, (b) the value and expected future value of the consideration received under the Stock Exchange Agreement dated ____, 2010 is sufficient compensation for his agreements hereunder for the duration of this Agreement and (c) the value and expected future value of the consideration received under the Stock Exchange Agreement dated ____, 2010 is expected to be sufficient to provide for his personal needs for the duration of this Agreement.


 






  





Page 29 of 34











  













 


Section 2.02.  Enforcement.  It is agreed by the parties that this covenant on the part of the Restricted Party may be enforced against the Restricted Party (a party engaged in the breach being the “Breaching Party”), by injunction, without requirement imposed by the Court for posting bond which the Restricted Party hereby specifically and knowingly waives, as well as by all other legal remedies available to the Benefited Party.  It is agreed by the parties that if any portion of this covenant not to compete is held to be unreasonable, arbitrary or against public policy, the covenant herein shall be considered divisible both as to time and geographical area so that a lesser period or geographical area shall remain effective so long as the court determines the same is not unreasonable, arbitrary, or against public policy.  The existence of any claim or cause of action of the Restricted Party against the Benefited Parties, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Benefited Parties of this covenant.


 


Section 2.03.  Liquidated damages.  It is agreed by the parties that in the event of breach by the Restricted Party of the covenants and agreements herein contained that, as liquidated damages, the Benefited Parties shall be entitled to recover from the Breaching Party attorneys’ fees and costs, including attorneys’ fees on appeal together with, at its election, either (i) the consideration paid to Breaching Party for the covenants and agreements herein contained, or if the breaching party has sold all or part of the non monitory consideration, then the non monitory consideration the Breaching Party has not sold and the gross price at which the Breaching Party sold the balance of the non monitory consideration or (ii) the gross revenues billed by the Breaching Party or any entity owned or controlled (entirely or partially) by the Breaching Party or by any entity employing the Breaching Party for goods and services in competition with the Protected Business, such liquidated damages being for lost business, damage to reputation and bad faith on the part of the Breaching Party and not a penalty.


 


Section 2.04.  Preservation of business.  The Restricted Party, during the period of this Agreement will not engage in any conduct, nor encourage others to engage in any conduct detrimental to the Protected Business and shall not commit any act, or in any way assist others to commit any act, which will injure such Protected Business and will not divulge any confidential information or make available to any others any documents, files or other papers concerning the Protected Business or financial performance of the Protected Business.


 


Section 2.05.  Release and termination.  In the event the Benefited Parties permanently cease conducting the Protected Business, the Restricted Party shall be released from this Agreement and this Agreement shall terminate.


 






  





Page 30 of 34











  













 


ARTICLE III


CONSIDERATION FOR COVENANTS




 


Section 3.01.  Initial consideration.  As consideration for the covenants set forth in Article II, at the execution of this Agreement, IFC will deliver __________.


 







ARTICLE IV


MISCELLANEOUS




 


Section 4.01.  Effective date.  The effective date of this Agreement shall for all purposes be the date set forth in first paragraph hereof notwithstanding a later actual date of execution by any individual party.


 


Section 4.02.  Entire agreement.  This writing constitutes the entire agreement of the parties with respect to the subject matter hereof, superseding all prior agreements, understandings, representations and warranties, except for the Stock Exchange Agreement among certain of the parties.


 


Section 4.03.  Waivers.  No waiver of any provision, requirement, obligation, condition, breach or default hereunder, or consent to any departure from the provisions hereof, shall be considered valid unless in writing and signed by the party giving such waiver, and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or similar nature.


 


Section 4.04.  Amendments.  This Agreement may not be modified, amended or terminated except by a written agreement specifically referring to this Agreement signed by all of the parties hereto and amendment, modification or alteration of, addition to or termination of this Agreement or any provision of this Agreement shall not be effective unless it is made in writing and signed by the parties.


 


Section 4.05.  Construction.  This Agreement has been negotiated by the parties, section by section, and no provision hereof shall be construed more strictly against one party than against another party by reason of such party having drafted such provision.  The order in which the provisions of this Agreement appear are solely for convenience of organization; and later appearing provisions shall not be construed to control earlier appearing provisions.


 


Section 4.06.  Invalidity.  It is the intent of the parties that each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law.  If any provision hereof shall be prohibited, invalid, illegal or unenforceable, in any respect, under applicable law, such provision shall be ineffective to the extent of such prohibition, invalidity or non enforceability only, without invalidating the remainder of such provision or the remaining provisions of this Agreement; and, there shall be substituted in place of such prohibited, invalid, illegal or unenforceable provision a provision which nearly as practicable carries out the intent of the parties with respect thereto and which is not prohibited and is valid, legal and enforceable.


 






  





Page 31 of 34











  













 


Section 4.07.  Multiple counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be an original and, taken together, shall be deemed one and the same instrument.


 


Section 4.08.  Assignment, parties and binding effect.  This Agreement, and the duties and obligations of any party shall not be assigned without the prior written consent of the other party(ies).  This Agreement shall benefit solely the named parties and no other person shall claim, directly or indirectly, benefit hereunder, express or implied, as a third-party beneficiary, or otherwise.  Wherever in this Agreement a party is named or referred to, the successors (including heirs and personal representative of individual parties) and permitted assigns of such party shall be deemed to be included, and all agreements, promises, covenants and stipulations in this Agreement shall be binding upon and inure to the benefit of their respective successors and permitted assigns.


 


Section 4.09.  Arbitration.  Unless a court of competent jurisdiction shall find that a particular dispute or controversy cannot, as a matter of law, be the subject of arbitration, any dispute or controversy arising hereunder, other than suit for injunctive relief which can be granted only by a court of competent jurisdiction, shall be settled by binding arbitration in Sedgwick County, Kansas by a panel of three arbitrators in accordance with the rules of the American Arbitration Association; provided, that the rules of discovery of District Court in and for Wichita, Kansas with jurisdiction of the situs of the arbitration shall apply and requests for discovery in accordance therewith shall be enforceable upon application to such court.  Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.  The parties may pursue all other remedies with respect to any claim that is not subject to arbitration.


 


Section 4.10.  Jurisdiction and venue.  Any action or proceeding for enforcement of this Agreement and the instruments and documents executed and delivered in connection herewith which is determined by a court of competent jurisdiction not, as a matter of law, to be subject to  arbitration as provided in Section 5.09 or which seeks injunctive relief shall be brought and enforced in the courts of the State of Kansas in and for Sedgwick County, Kansas, and the parties irrevocably submit to the jurisdiction of each such court in respect of any such action or proceeding.


 


Section 4.11.  Applicable law.  This Agreement and all amendments thereof shall be governed by and construed in accordance with the law of the State of Kansas applicable to contracts made and to be performed therein (not including the choice of law rules thereof).


 


Section 4.12.  Trustee Restrictions.  Notwithstanding anything to the contrary herein, Commerce Bank and Trust Company (“Bank Trustee:) shall not be deemed to be in violation of the covenants herein contained if Bank Trustee serves in a fiduciary capacity as the owner of other entities (corporate or otherwise) that engage in activities or actions that would otherwise be considered to be violations of the terms of this Agreement so long as Bank Trustee is acting solely in a fiduciary capacity for the benefit of others.


 






  





Page 32 of 34











  








IN WITNESS WHEREOF, the parties hereto have caused this agreement to be signed by their respective officers thereunto duly authorized and their respective corporate seals to be hereunto affixed, the day and year first above written.


 







 



	
[Corporate Seal]

	
Intgrated Freight Corporation


	  	  
	
Attest:

	
By:  ___________________


	  	
Paul A. Henley, President


	
___________________

	  
	
Jackson L. Morris, Secretary

	  
	  	  
	
[Corporate Seal]

	
M. Bruenger & Co., Inc.


	  	  
	
Attest:

	
By:  ___________________


	  	
M.W. Bruenger, President


	
___________________

	  
	
_____________, Secretary

	  
	  	  
	  	  
	  	
Selling Stockholders:


________________________________


M.W. Bruenger


 


________________________________


Eric Ireland, Senior Vice President and Trust Officer, Commerce Bank and Trust Company, Trustee of the Patricia A. Carr Revocable Trust


 


________________________________


Jeffery A. Kroneberger


 


________________________________


Patrick W. Kroneberger


 


________________________________


Michael S. Kroneberger


 


________________________________


Karen K. Moody



 




________________________________


Janet M. Haas


 











  





Page 33 of 34











  








INDEX TO DISCLOSURE SCHEDULES


STOCK EXCHANGE AGREEMENT


AMONG PLANGRAPHICS, INC, M. BRUENGER & CO. INC. AND THE SELLING STOCKHOLDERS







DATED ________, 2010


 







 


Schedule 4.01(a).  Subsidiaries of Bruenger.


 


M. Bruenger & Co., Inc.






  





Page 34 of 34