ASSET PURCHASE AGREEMENT
by and among
WORLDWIDE DEDICATED SERVICES, INC.,
▇▇▇▇▇▇▇ TRUCK LEASING CORP.,
▇▇▇▇▇▇▇ LOGISTICS INC.,
▇▇▇▇▇▇▇ DEDICATED CARRIAGE SERVICES, INC.,
AND
▇▇▇▇▇▇▇ TRANSPORTATION SYSTEMS, INC.
As of November 12, 1999
TABLE OF CONTENTS
ARTICLE I PURCHASE AND SALE 2
Section 1.1 Purchase and Sale 2
Section 1.2 Assets 3
Section 1.3 Excluded Assets 5
Section 1.4 Assumption of Assumed Liabilities 5
Section 1.5 Excluded Liabilities 6
Section 1.6 Purchase Price 7
Section 1.7 Payment of Purchase Price 7
Section 1.8 Target Working Capital 8
Section 1.9 Adjustment of Purchase Price 8
Section 1.10 Closing 10
Section 1.11 Deliveries by Seller 11
Section 1.12 Deliveries by Buyer 11
ARTICLE II RELATED MATTERS 12
Section 2.1 Use of Seller's Name and Logos 12
Section 2.2 No Ongoing or Transition Services 13
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER 13
Section 3.1 Organization 13
Section 3.2 Authorization 14
Section 3.3 Consents and Approvals; No Violations 15
Section 3.4 Financial Statements 16
Section 3.5 Absence of Material Adverse Effect 16
Section 3.6 Title, Ownership and Related Matters 18
Section 3.7 Intellectual Property 19
Section 3.8 Computer Software 19
Section 3.9 Year 2000 Compliance 19
Section 3.10 Litigation 20
Section 3.11 Compliance with Applicable Law 20
Section 3.12 Certain Contracts and Arrangements 20
Section 3.13 Employee Benefit Plans; ERISA 21
Section 3.14 Labor Matters 22
Section 3.15 Taxes 22
Section 3.16 Environmental 24
Section 3.17 Officers; Bank Accounts 25
Section 3.18 Certain Fees 25
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER 25
Section 4.1 Organization and Authority of Buyer 25
Section 4.2 Consents and Approvals; No Violations 26
Section 4.3 Litigation 26
Section 4.4 Certain Fees 27
ARTICLE V COVENANTS 27
Section 5.1 Conduct of Seller's Business 27
Section 5.2 Access to Information 28
Section 5.3 Consents 29
Section 5.4 Reasonable Best Efforts 29
Section 5.5 Public Announcements 29
Section 5.6 Covenant to Satisfy Conditions 30
Section 5.7 Employees; Employee Benefits 30
Section 5.8 Supplemental Disclosure 31
Section 5.9 Investigation by Buyer 32
Section 5.10 Additional Actions 32
Section 5.11 Parent Guarantee 33
ARTICLE VI CONDITIONS TO OBLIGATIONS OF THE PARTIES 33
Section 6.1 Conditions to Each Party's Obligation 33
Section 6.2 Conditions to Obligations of Seller 34
Section 6.3 Conditions to Obligations of Buyer 35
ARTICLE VII TERMINATION 35
Section 7.1 Termination 35
Section 7.2 Procedure and Effect of Termination 37
ARTICLE VIII SURVIVAL OF REPRESENTATIONS 38
Section 8.1 Survival of Representations, Warranties and
Agreements 38
ARTICLE IX INDEMNIFICATION 39
Section 9.1 Indemnification Obligations of Seller 39
Section 9.2 Indemnification Procedure 39
ARTICLE X MISCELLANEOUS 41
Section 10.1 Fees and Expenses 42
Section 10.2 Further Assurances 42
Section 10.3 Notices 42
Section 10.4 Severability 44
Section 10.5 Binding Effect; Assignment 45
Section 10.6 No Third Party Beneficiaries 45
Section 10.7 Interpretation 46
Section 10.8 Jurisdiction and Consent to Service 46
Section 10.9 Entire Agreement 46
Section 10.10 Governing Law 47
Section 10.11 Specific Performance 47
Section 10.12 Counterparts 47
Section 10.13 Amendment, Modification and Waiver 47
Section 10.14 Knowledge 48
Section 10.15 Schedules and Exhibits 48
Section 10.16 Arbitration 48
DEFINED TERMS
Term Section
Acceptance Notice . . . . . . . . . . . . . . . . . . . . . . . . .1.9(c)
Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . .Preamble
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.7(c)
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . .Preamble
Allocation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1.13
Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1
Assumed Contracts . . . . . . . . . . . . . . . . . . . . . . . . .1.2(e)
Assumed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . 1.4
Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Preamble
Buyer Auditor . . . . . . . . . . . . . . . . . . . . . . . . . . .1.9(b)
Buyer Indemnified Parties . . . . . . . . . . . . . . . . . . . . . . 9.1
Buyer Losses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1
Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1
Closing Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . .1.10
Closing Date Working Capital. . . . . . . . . . . . . . . . . . . .1.9(a)
Confidentiality Agreement . . . . . . . . . . . . . . . . . . . . .5.2(b)
Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.12
Dedicated . . . . . . . . . . . . . . . . . . . . . . . . . . . .Preamble
employee benefit plan . . . . . . . . . . . . . . . . . . . . . . .5.7(a)
employee welfare benefit plan . . . . . . . . . . . . . . . . . . .5.7(a)
Environmental Claims. . . . . . . . . . . . . . . . . . . . . . . 3.16(b)
Environmental Laws. . . . . . . . . . . . . . . . . . . . . . . . 3.16(b)
ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.13(a)
Excluded Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3
Excluded Liabilities. . . . . . . . . . . . . . . . . . . . . . . . . 1.5
Final Balance Sheet . . . . . . . . . . . . . . . . . . . . . . . .1.9(c)
Final Working Capital Statement . . . . . . . . . . . . . . . . . .1.9(c)
Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . 3.4
GAAP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1.9(b)
Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . . 3.16(b)
HSR Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3
Indemnified Claims . . . . . . . . . . . . . . . . . . . . . . . . . 1.5
Intellectual Property . . . . . . . . . . . . . . . . . . . . . . .3.7(a)
Interim Balance Sheet . . . . . . . . . . . . . . . . . . . . . . .1.9(b)
IRS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.13(b)
Leased Real Property. . . . . . . . . . . . . . . . . . . . . . 3.6(a)(i)
Litigation Claims . . . . . . . . . . . . . . . . . . . . . . . . . .3.10
Logistics . . . . . . . . . . . . . . . . . . . . . . . . . . . .Preamble
Money Rates . . . . . . . . . . . . . . . . . . . . . . . . . . . .1.7(b)
Objection Notice. . . . . . . . . . . . . . . . . . . . . . . . . .1.9(c)
Parent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Preamble
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.7(b)
Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.13(a)
Preliminary Balance Sheet . . . . . . . . . . . . . . . . . . . . .1.9(b)
Preliminary Working Capital Statement . . . . . . . . . . . . . . .1.9(b)
Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.6
Retained Employees. . . . . . . . . . . . . . . . . . . . . . . . .1.3(g)
▇▇▇▇▇▇▇ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1.3(c)
Seller or Sellers . . . . . . . . . . . . . . . . . . . . . . . .Preamble
Seller Auditor. . . . . . . . . . . . . . . . . . . . . . . . . . .1.9(b)
Seller Benefit Plans. . . . . . . . . . . . . . . . . . . . . . . 3.13(c)
Seller Material Adverse Effect. . . . . . . . . . . . . . . . . . .3.1(b)
Seller Tradenames and Logos . . . . . . . . . . . . . . . . . . . . . 2.1
Staffing Services Agreement . . . . . . . . . . . . . . . . . . . .6.2(d)
Target Working Capital. . . . . . . . . . . . . . . . . . . . . . . . 1.8
Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.15(c)(i)
Tax Return. . . . . . . . . . . . . . . . . . . . . . . . . . 3.15(c)(ii)
To the Knowledge of Buyer. . . . . . . . . . . . . . . . . . . . . 10.14
To the Knowledge of Sellers . . . . . . . . . . . . . . . . . . . . 10.14
Transferred Employees . . . . . . . . . . . . . . . . . . . . . . .1.2(l)
Transition Agreement. . . . . . . . . . . . . . . . . . . . . . . .6.2(e)
Transportation. . . . . . . . . . . . . . . . . . . . . . . . . .Preamble
Unrelated Accounting Firm . . . . . . . . . . . . . . . . . . . . .1.9(c)
VEBA Audit. . . . . . . . . . . . . . . . . . . . . . . . . . . . .1.5(b)
SCHEDULES
Schedule 1.2(f) Leases
Schedule 1.2(l) Transferred Employees
Schedule 1.3(a) Permits/Licenses
Schedule 3.1 Foreign Qualifications
Schedule 3.3 Consents
Schedule 3.5 Absence of Change
Schedule 3.6(a)(i) Leased Real Property
Schedule 3.6(a)(iii) Condemnation/Appropriation
Proceedings
Schedule 3.6(b) Necessary Assets
Schedule 3.7 Intellectual Property
Schedule 3.10 Litigation
Schedule 3.12 Contracts
Schedule 3.12(i) Material Default Notices
Schedule 3.13 Employee Benefits
Schedule 3.14 Labor Matters
Schedule 3.15 Taxes
Schedule 3.16(a) Environmental Permits/Licenses
Schedule 3.16(b) Environmental Notices
Schedule 3.17 Officers; Bank Accounts
Schedule 3.20 Bank Accounts
Schedule 5.10 Additional Actions
EXHIBITS
Exhibit Number
Current Assets and Liabilities 1.9(a)
Accounting Principles 1.9(b)
Staffing Services Agreement 6.2(d)
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT, dated as of November 12, 1999 (this
"Agreement"), is made and entered into by and between Worldwide
Dedicated Services, Inc., a Delaware corporation ("Buyer"); ▇▇▇▇▇▇▇
Truck Leasing Corp., a Delaware corporation ("Parent"); ▇▇▇▇▇▇▇
Logistics, Inc., a Delaware corporation ("Logistics"), ▇▇▇▇▇▇▇
Dedicated Carriage Services, Inc., a Delaware corporation ("Dedicated")
and ▇▇▇▇▇▇▇ Transportation Systems, Inc., ("Transportation" and
together with Logistics and Dedicated hereinafter, individually
occasionally referred to as the "Sellers" and collectively referred to
as "Seller").
W I T N E S S E T H:
WHEREAS, Buyer and Seller desire to enter into this
Agreement pursuant to which Seller proposes to sell to Buyer, and Buyer
proposes to purchase from Seller, the assets used or held for use by
Seller in the conduct of its business, and Buyer proposes to assume
certain of the liabilities and obligations of Seller (the
"Acquisition"); and
WHEREAS, Seller and Buyer desire to make certain representations,
warranties and agreements in connection with the Acquisition.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions
hereinafter set forth, and intending to be legally bound hereby, the
parties hereto agree as follows:
PURCHASE AND SALE
Purchase and Sale. Subject to the terms and conditions set
forth in this Agreement, at the closing provided for in Section 1.10
hereof (the "Closing") and except as otherwise specifically provided
in this Article 1, Seller shall grant, convey, sell, assign, transfer
and deliver to Buyer, and Buyer will purchase and acquire from
Seller, all right, title and interest of Seller in and to (a) the
business of Seller as a going concern and (b) except for the Excluded
Assets (as hereinafter defined), all of the assets, properties and
rights of Seller of every kind and description, tangible and
intangible, wherever situated (which business, assets, properties and
rights are hereinafter collectively referred to as the "Assets"),
free and clear of all mortgages, liens, pledges, security interests,
charges, claims, restrictions and encumbrances of any nature
whatsoever, except Assumed Liabilities (as hereinafter defined).
Assets. Except as otherwise expressly set forth in Section 1.3
hereof, the Assets shall include, without limitation, the following
assets, properties and rights of Seller as of the Closing Date (as
hereinafter defined):
all accounts receivable and notes receivable;
all deposits, advances, prepaid expenses and credits;
all inventories, including finished products, work-in-process,
raw materials, spare parts, stores and supplies, office supplies and
other inventory items;
all machinery, equipment, business machines, computer hardware,
vehicles, furniture, fixtures, tools, parts and other tangible
property not normally included in the inventory used in Seller's
business, whether or not carried on the books of Seller;
except as otherwise set forth in Section 1.3(d), all right,
title and interest of Seller in all contracts (written or oral),
agreements or other instruments, including, without limitation,
contracts with customers and suppliers and all leases of personal
property (the "Assumed Contracts");
except as otherwise set forth on Schedule 1.2(f), all
leaseholds, leasehold improvements and other rights relating thereto;
all goodwill, patents, copyrights, methods, know-how, software,
technical documentation, trade secrets, trademarks, trade names and
general intangible (and all rights thereto and applications
therefor);
except for the Indemnified Claims (as hereinafter defined), all
rights to causes of action, lawsuits, judgments, claims and demands
of any nature available to or being pursued by Seller, whether
arising by way of counterclaim or otherwise;
all guarantees, warranties, indemnities and similar rights in
favor of Seller;
all governmental permits, licenses or similar rights relating to
the business of Seller, other than those set forth on Schedule
1.3(a);
all information, files, correspondence, records, data, plans,
contracts and recorded knowledge, including customer and supplier
lists and all accounting or other books and records of Seller;
those employees of Seller listed on Schedule 1.2(l) who will be
offered employment by Buyer on the Closing Date (the "Transferred
Employees");
all other tangible and intangible assets of any kind or
description, wherever located, that are carried on the books of
Seller or which are owned by Seller; and
all cash, cash equivalents, marketable securities and bank
accounts.
Excluded Assets. Notwithstanding anything to the contrary set
forth herein, the Assets shall not include the following assets,
properties and rights of Seller (collectively, the "Excluded
Assets"):
any governmental permit, license or similar right that by its
terms is not transferable to Buyer, which permits, licenses and
similar rights are set forth on Schedule 1.3(a);
minute books and stock ledger records of Seller;
all rights to the use of the name "▇▇▇▇▇▇▇" and all derivatives
thereof;
the rights that accrue to Seller under this Agreement;
the rights to any federal, state, local or foreign income tax
refunds;
all insurance policies of Seller or acquired or assumed by
Seller prior to the Closing Date pertaining to Seller's business and
all rights of Seller of every nature and description under or arising
out of such insurance policies; and
those employees of Seller other than those listed on Schedule
1.2(l) (the "Retained Employees").
Assumption of Assumed Liabilities. Except to the extent
specified in Section 1.5, Buyer shall, in connection with the
transactions contemplated hereby, assume and agree to pay, discharge
or perform, as appropriate, all liabilities and obligations of Seller
accrued as of the Closing Date and all liabilities and obligations
arising from Seller's operations prior to the Closing Date (the
"Assumed Liabilities").
Excluded Liabilities. The Assumed Liabilities shall not
include, and in no event shall Buyer assume, agree to pay, discharge
or perform or incur any liability or obligation under this Agreement
or otherwise become responsible in respect of, the following (the
"Excluded Liabilities"):
the Indemnified Claims (as hereinafter defined);
the items identified on Schedule 1.5(b) ;
any liability or obligation for Taxes (as hereinafter defined);
any liability or obligation under any collective bargaining
agreement or otherwise relating to the Retained Employees;
any liability or obligation to Parent or any of its Affiliates
(as hereinafter defined), including intercompany debt for borrowed
money, other than those obligations specified on Schedule 1.5(e); and
any debt for borrowed money to a third party. For purposes
of this Agreement, the "Indemnified Claims" shall mean those
Litigation Claims marked with an asterisk on Schedule 3.10 and any
claim of the type described below brought against Seller (or Buyer as
the successor to Seller) after the date hereof to the extent based on
an occurrence in connection with Seller's operations prior to the
Closing Date: workers' compensation, vehicle accident or other
personal injury or property damage claims normally covered under a
general liability insurance policy, and employee compensation and
benefits (other than employee compensation and benefits accrued as a
liability on the Final Closing Balance Sheet
and reflected in the calculation of the Closing Date Working
Capital).
Purchase Price. Subject to adjustment as provided in Section
1.7(b), the Purchase Price for the Assets will be an amount equal to
$67,220,000 plus the assumption by Buyer of the Assumed Liabilities
(such amount as adjusted is hereafter referred to as the "Purchase
Price"). The Purchase Price shall be payable as provided in Section
1.7(a) and (c), together with any necessary post-closing adjustments
as provided in Section 1.7(b).
Payment of Purchase Price.
At the Closing, Buyer shall deliver or cause to be delivered to
Seller the Purchase Price (prior to the adjustment contemplated by
Section 1.7(b) hereof).
Within five business days after the determination of the Final
Working Capital Statement (as hereinafter defined) in accordance with
Section 1.9 hereof, (i) if the amount of the Closing Date Working
Capital (as hereinafter defined) calculated in accordance with
Section 1.9 is less than 97% of the Target Working Capital (as
hereinafter defined), then Seller shall pay to Buyer an amount equal
to the difference between 97% of the Target Working Capital and the
Closing Date Working Capital plus interest or (ii) if the amount of
the Closing Date Working Capital calculated in accordance with
Section 1.9 is greater than 103% of the Target Working Capital, Buyer
shall pay to Seller an amount equal to the difference between 103% of
the Target Working Capital and the Closing Date Working Capital plus
interest. Any payment required under this Section 1.7(b) shall
include interest on the amount of that payment at the prime rate of
interest (as published in the "Money Rates" table of The Wall Street
Journal on the Closing Date) beginning on the Closing Date (as
hereinafter defined) and ending on the date of any such payment.
All payments required under this Section 1.7 shall be made in
cash by wire transfer of immediately available federal funds to such
bank account(s) as shall be designated in writing by the recipient at
least three days prior to the Closing or promptly upon the
determination of the Final Balance Sheet (as hereinafter defined), as
the case may be.
Target Working Capital. "Target Working Capital" shall equal
$7,031,594.
Adjustment of Purchase Price.
For purposes of this Agreement, the "Closing Date Working
Capital" shall mean the consolidated book value of those categories
of current assets of Seller listed on Exhibit 1.9(a) less the
consolidated book value of those categories of current liabilities of
Seller listed on Exhibit 1.9(a), in each case as reflected on the
Final Balance Sheet.
Promptly following the Closing, Seller shall prepare (i) a
balance sheet reflecting the Assets and the Assumed Liabilities as of
the close of business on the Closing Date (the "Preliminary Balance
Sheet"), in accordance with generally accepted accounting principles
("GAAP") on a basis consistent with the unaudited consolidated
balance sheet of Seller as of September 30, 1999 (the "Interim
Balance Sheet"), which principles are set forth on Exhibit 1.9(b),
and (ii) a calculation of the Closing Date Working Capital based on
the Preliminary Balance Sheet (the "Preliminary Working Capital
Statement"). Seller shall engage, and be responsible for the fees
and expenses of, KPMG Peat Marwick LLP (the "Seller Auditor") to
audit the Preliminary Balance Sheet and the Preliminary Working
Capital Statement and shall use all commercially reasonable efforts
to deliver to Buyer a final draft of the Preliminary Balance Sheet
and the Preliminary Working Capital Statement within 60 days after
the Closing Date, together with a final report of the Seller Auditor
thereon stating that the audit of the Preliminary Working Capital
Statement has been made in accordance with GAAP on a basis consistent
with the Interim Balance Sheet. Representatives of Buyer shall have
the opportunity to observe the taking of the inventory of Seller in
connection with the preparation of the Preliminary Balance Sheet, and
to examine the work papers, schedules and other documents prepared by
Seller in connection with the preparation of the Preliminary Balance
Sheet and the Preliminary Working Capital Statement. Seller shall
use all commercially reasonable efforts to cause the Seller Auditor
to permit Buyer and its accounting firm (the "Buyer Auditor") to
examine the Seller Auditor's work papers used in connection with its
audit of the Preliminary Balance Sheet and the Preliminary Working
Capital Statement. Buyer shall be responsible for the fees and
expenses of the Buyer Auditor.
If Buyer objects to the Preliminary Balance Sheet and the
Preliminary Working Capital Statement, Buyer shall deliver to Seller
a written notice of objection (an "Objection Notice") within 15 days
following the delivery thereof. If Buyer has no objection to the
Preliminary Balance Sheet and the Preliminary Working Capital
Statement, Buyer shall promptly deliver to Seller a written notice of
acceptance (an "Acceptance Notice"). The Preliminary Balance Sheet
and the Preliminary Working Capital Statement shall be final and
binding on the parties if an Acceptance Notice is delivered or if no
Objection Notice is delivered to Seller within such 15-day period.
Any payment or portion of any payment required under Section 1.7 not
subject to an Objection Notice, shall be paid within five business
days following the delivery of an Objection Notice. Any Objection
Notice shall specify in reasonable detail the items on the
Preliminary Balance Sheet and the Preliminary Working Capital
Statement disputed and shall describe in reasonable detail the basis
for the objection and all information in the possession of Buyer
which forms the basis thereof, as well as the amount in dispute. If
an Objection Notice is given, the parties shall consult with each
other with respect to the objection. If the parties are unable to
reach agreement within 15 days after an Objection Notice has been
given, any unresolved disputed items shall be promptly referred to an
independent accounting firm designated by agreement of Seller and
Buyer (the "Unrelated Accounting Firm"). The Unrelated Accounting
Firm shall be directed to resolve disputed issues in accordance with
the terms of this Agreement and render a written report on the
unresolved disputed issues with respect to the Preliminary Balance
Sheet and the Preliminary Working Capital Statement as promptly as
practicable and to resolve only those issues of dispute set forth in
the Objection Notice. The resolution of the dispute by the Unrelated
Accounting Firm shall be final and binding on the parties. The fees
and expenses of the Unrelated Accounting Firm shall be borne equally
by Seller, on the one hand, and Buyer, on the other hand. The
Preliminary Balance Sheet and the Preliminary Working Capital
Statement as finally determined pursuant to this Section 1.9(c) is
referred to herein, respectively, as the "Final Balance Sheet" and
the "Final Working Capital Statement".
Closing. (a) The Closing of the transactions contemplated by
this Agreement shall take place at the offices of King & Spalding,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇. If all of the conditions to
Closing set forth in Article VI hereof have been satisfied or waived
prior to such time, the Closing shall take place at 12:01 a.m.
Eastern Time on January 1, 2000. If the Closing does not occur at
such time, the Closing shall take place (assuming satisfaction or
waiver of all conditions to Closing) at 11:59 p.m. Eastern Time on
January 31, 2000, or at such other time as the parties mutually
agree. The date of the Closing is sometimes referred to herein as
the "Closing Date".
Deliveries by Seller. At the Closing, Seller will deliver or
cause to be delivered to Buyer (unless delivered previously) the
following:
The Transition Agreement (as hereinafter defined), executed by
Seller or its Affiliate;
The Staffing Services Agreement executed by Seller or its
Affiliate;
Bills of sale, instruments of assignment, certificates of title
and other conveyance documents, dated the Closing Date, transferring
to Buyer all of Seller's right, title and interest in and to the
Assets together with possession of the Assets;
Documents evidencing the assignment and assumption of the
Assumed Contracts and the Assumed Liabilities and the assignment of
any assignable permits and licenses; and
All other documents, instruments and writings required by Buyer
to be delivered by Seller at or prior to the Closing pursuant to this
Agreement or otherwise reasonably required in connection herewith.
Deliveries by Buyer. At the Closing, Buyer will deliver or
cause to be delivered to Seller (unless previously delivered) the
following:
The Purchase Pric'e in accordance with Section 1.7 hereof;
The Transition Agreement, executed by Buyer or its Affiliate;
The Staffing Services Agreement, executed by Buyer or its
Affiliate;
Documents evidencing the assignment and assumption of the
Assumed Contracts and the Assumed Liabilities and the assignment of
any assignable permits and licenses; and
All other documents, instruments and writings required by Seller
to be delivered by the buyer at or prior to the Closing pursuant to
this Agreement or otherwise reasonably required in connection
herewith.
Allocation of Purchase Price. Seller and Buyer will use their
reasonable best efforts to agree on the allocation of the Assets (the
"Allocation") and will use the Allocation in reporting the deemed
purchase and sale of the Assets for federal and state income tax
purposes. If the parties are unable to agree upon the Allocation
within 90 days before the due date of filing any Tax Return (as
hereinafter defined) for which the Allocation is relevant, the
Allocation shall be made by an independent accountant selected by the
parties.
RELATED MATTERS
Use of Seller
''s Name and Logos. It is expressly agreed that
Buyer is not purchasing, acquiring or otherwise obtaining any right,
title or interest in the names "▇▇▇▇▇▇▇" or "▇▇▇▇▇▇▇ Logistics", or
any tradenames, trademarks, identifying logos or service marks
related thereto or employing any part or variation of any of the
foregoing or any confusingly similar tradename, trademark or logo
(collectively, the "Seller Tradenames and Logos"). Buyer agrees that
neither it nor any of its Affiliates (as hereinafter defined) shall
make any use of the Seller Tradenames and Logos from and after the
Closing Date; provided, however, that Seller (or its Affiliate) shall
grant Buyer a ninety (90) day license for use of the ▇▇▇▇▇▇▇
Logistics logo in order for Buyer to undertake the deletion or
removal of the ▇▇▇▇▇▇▇ Logistics logo in a practical manner.
No Ongoing or Transition Services. Except as provided in the
Transition Agreement, at the Closing, all data processing,
accounting, insurance, banking, personnel, legal, communications,
fuel procurement and other services provided to Seller by any
Affiliate of Seller, including any agreements or understandings
(written or oral) with respect thereto, will terminate.
Distributions. The parties agree that Seller shall have
the right, at or prior to the Closing, to cause Seller to distribute
all cash held by Seller to its Affiliates, by one or more cash
dividends, repurchase of existing stock and/or other distributions.
Except as provided in Section 1.9(b), no adjustment shall be made to
the Purchase Price as a result of any such dividends, repurchases or
other distributions paid to Seller or its Affiliates.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows:
Organization.
Each of the Sellers is a corporation validly existing and in
good standing under the laws of the State of Delaware, and has all
requisite power and authority to own, lease and operate its
properties and assets and to carry on its operations as now being
conducted. Each of the Sellers is duly qualified or licensed and in
good standing to do business in each jurisdiction in which the
property or assets owned, leased or operated by each of the Sellers
or the nature of the business conducted by each of the Sellers makes
such qualification necessary, except where the failure to be so duly
qualified or licensed and in good standing would not individually or
in the aggregate have a Seller Material Adverse Effect (as
hereinafter defined). Schedule 3.1 sets forth a list of all
jurisdictions where each of the Sellers is qualified to do business.
Seller has heretofore made available to Buyer complete and correct
copies of the certificate of incorporation and by-laws of each of the
Sellers, as currently in effect.
As used herein, a "Seller Material Adverse Effect" shall mean
any event, change or effect that has occurred which has a material
adverse effect upon the financial condition, operating results or
business of Seller; provided, however, that Seller Material Adverse
Effect shall not include any event, change in or effect upon the
financial condition or business of Seller, directly or indirectly,
arising out of, attributable to or as a consequence of: (a)
conditions, events or circumstances generally affecting the vehicle
leasing industry or the overall economy; or (b) the public
announcement of either the execution of this Agreement or the
transactions contemplated hereunder.
Authorization. Each of the Sellers has the corporate power and
authority to execute and deliver this Agreement and perform its
respective obligations hereunder. The execution and delivery of this
Agreement and the performance by each of the Sellers of its
respective covenants and agreements hereunder has been duly and
validly authorized by the Boards of Directors and shareholders of
each Seller and the Board of Directors of ▇▇▇▇▇▇▇ Truck Leasing
Corp., and no other corporate proceedings on the part of Seller or
its Affiliates is necessary to authorize the execution, delivery and
performance of this Agreement or the consummation of the transactions
so contemplated. This Agreement has been duly executed and delivered
by each of the Sellers and constitutes a valid and binding agreement
of each of the Sellers, enforceable against each of the Sellers in
accordance with its terms, except that (a) such enforcement may be
subject to any bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other laws, now or hereafter in effect,
relating to or limiting creditors' rights generally and (b) the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
Consents and Approvals; No Violations. Except as set forth on
Schedule 3.3 and for applicable requirements of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act of 1976, as amended (the "HSR Act"),
neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (a)
conflict with or result in any breach of any provision of the
certificate of incorporation or by-laws of any of the Sellers; (b)
require any filing with, or the obtaining of any permit,
authorization, consent or approval of, any governmental or regulatory
authority; (c) violate, conflict with or result in a default (or any
event which, with notice or lapse of time or both, would constitute a
default) under, or give rise to any right of termination,
cancellation or acceleration under, any of the terms, conditions or
provisions of any note, mortgage, other evidence of indebtedness,
guarantee, license, agreement, lease or other contract, instrument or
obligation to which any of the Sellers is a party or by which any of
the Sellers or any of their respective assets may be bound; or (d)
violate any order, injunction, decree, statute, rule or regulation
applicable to any of the Sellers, excluding from the foregoing
clauses (b), (c) and (d) such requirements, violations, conflicts,
defaults or rights (i) which would not have Seller Material Adverse
Effect and would not adversely affect the ability of any of the
Sellers to consummate the transactions contemplated by this
Agreement, or (ii) which become applicable as a result of the
business or activities in which Buyer is or proposes to be engaged or
as a result of any acts or omissions by, or the status of or any
facts pertaining to, Buyer.
Financial Statements. Seller has made available to Buyer: (i)
the unaudited consolidated balance sheets of Seller as of September
30, 1997 and 1998 and the unaudited consolidated statements of income
and cash flows thereof for the respective fiscal years then ended,
including the notes thereto; and (ii) the unaudited consolidated
balance sheet of Seller as of September 30, 1999 and the unaudited
consolidated statements of income and cash flows thereof for the six
month period then ended, including the notes thereto. All of the
foregoing financial statements are hereinafter collectively referred
to as the "Financial Statements." Except as disclosed in the
Financial Statements, the Financial Statements have been prepared
from, and are in accordance with, the books and records of Seller and
present fairly, in all material respects, the financial position and
results of operations of Seller as of the dates and for the
applicable periods indicated, in each case in conformity with GAAP.
Absence of Material Adverse Effect. Except as set forth on
Schedule 3.5, since September 30, 1999, Seller has:
conducted its business in the ordinary course;
not sold any asset at a price of more than $100,000 other than
in the ordinary course of business;
maintained accounts receivable, inventory, accounts payable and
other working capital accounts in a manner consistent with normal
business practices;
not written up or down the value of any inventory or determined
as collectible any notes or accounts receivable that were previously
considered to be uncollectible, except for write-ups or write-downs
and other determinations in accordance with GAAP and in the ordinary
course of business and consistent with past practice;
not pledged or permitted the imposition of any lien on any of
its assets;
not suffered any change in its financial condition, operating
results or business or suffered any other event or condition of any
character which individually or in the aggregate has had a Seller
Material Adverse Effect;
not suffered any damage, destruction or loss of tangible assets,
whether or not covered by insurance, in excess of $250,000, in the
aggregate;
not paid, discharged or satisfied any claims, liabilities or
obligations (absolute, accrued, contingent or otherwise), except in
each case in the ordinary course of business;
not canceled any debts or waived any claims or rights of
substantial value, except in each case in the ordinary course of
business; and
not granted any general increase in the compensation payable or
to become payable to its officers, directors, consultants or
employees (including any such increase pursuant to any bonus,
severance, termination, pension, profit-sharing or other plan or
commitment) or any special increase in the compensation payable or to
become payable to any officer, director, consultant or employee,
except for (i) normal merit and cost of living increases in the
ordinary course of business and in accordance with past practice and
(ii) severance commitments that are (and shall remain after Closing)
the sole responsibility of Seller and its Affiliates.
Title, Ownership and Related Matters.
Real Property.
Seller does not own any real property. Schedule 3.6(a)(i) sets
forth a list of the parcels of real property currently leased by
Seller or from which Seller conducts any of its operations (together
with all fixtures and improvements thereon, the "Leased Real
Property").
To the Knowledge of Seller, it has a valid leasehold interest in
the Leased Real Property, free and clear of any mortgage, liens,
pledges, security interests, claims, restrictions or other
encumbrances.
To the Knowledge of Seller, the improvements on the Leased Real
Property are free from any material structural defects. Except as
set forth on Schedule 3.6(a)(iii), to the Knowledge of Seller, there
are no condemnation or appropriation or similar proceedings pending
or threatened against any of the Leased Real Property or the
improvements thereon.
Necessary Assets. To the Knowledge of Seller, except as set
forth in Schedule 3.6(b), it has good and marketable title to its
material assets, free and clear of all liens, pledges, security
interests, charges, claims, restrictions and encumbrances of any
nature whatsoever.
Intellectual Property.
To the Knowledge of Seller (as herein defined), the conduct of
its business does not infringe upon any intellectual property right
of any third party. There are no pending, or to the Knowledge of
Seller threatened, proceedings or litigation or other adverse claims
by any Person (as hereinafter defined) against the use by Seller of
any trademarks, trade names, service marks, service names, logos,
assumed names, copyrights, patents or registrations and applications
therefor which are owned by Seller and are necessary for the
operation of the Seller's business as currently conducted
(collectively, the "Intellectual Property"). Schedule 3.7 sets forth
a list of all Intellectual Property owned by Seller.
Seller has valid licenses or other rights to use the
Intellectual Property necessary to permit Seller to conduct its
operations as currently conducted, except (i) for the Seller
Tradenames and Logos and (ii) where the failure to have such
ownership, licenses or rights would not have a Seller Material
Adverse Effect.
Computer Software. Seller has valid licenses or other rights to
use all material computer software programs to permit it to conduct
its operations as currently conducted, except where the failure to
have such ownership, licenses or rights would not have a Seller
Material Adverse Effect.
Year 2000 Compliance. Seller has provided Buyer true and
complete copies of all material reports and analyses obtained by
Seller with respect to Year 2000 compliance issues concerning its
businesses. Seller's major systems have been modified, tested and
certified.
Litigation. Schedule 3.10 identifies all claims, actions,
suits, proceedings and governmental investigations pending or, to the
Knowledge of Seller, threatened against Seller by or before any
court, governmental or regulatory authority or by any third party
(other than claims, actions, suits, proceedings, and governmental
investigations set forth on Schedule 3.16(b) (the "Litigation
Claims").
Compliance with Applicable Law. To the Knowledge of Seller, it
is in compliance in all material respects with all applicable laws,
ordinances, rules and regulations of any federal, state, local or
foreign governmental authority applicable to Seller or its operations
and necessary to carry on its business as it is currently being
conducted, to own or hold under lease the properties and assets it
owns or holds under lease and to perform all of its obligations under
the agreements to which it is a party.
Certain Contracts and Arrangements. Schedule 3.12 sets forth a
list of the following contracts to which each of the Sellers is a
party: (a) employment agreements; (b) indentures, mortgages, notes,
installment obligations, agreements or other instruments relating to
the borrowing of money or the guaranty by each of the Sellers of any
obligation for the borrowing of money; (c) real property leases; or
(d) contracts with Affiliates; or (e) other agreements, including
without limitation, customer contracts, which individually involve
the receipt or payment by each of the Sellers after the date hereof
of more than $100,000 and are not terminable without liability to
each of the Sellers upon 30 days or less prior written notice
(together with those contracts, agreements and understandings
described in clauses (a), (b), (c) and (d), the "Contracts"). Seller
has made available to Buyer copies of all Contracts. To the
Knowledge of Seller, all such Contracts are valid, binding and
enforceable in accordance with their terms and, to the Knowledge of
Seller, neither Seller nor any other party thereto is in material
default under any of the aforesaid Contracts. Schedule 3.12(i) sets
forth a list of all unresolved material default notices received from
or given to third parties pertaining to the Contracts.
Employee Benefit Plans; ERISA. Except as set forth on Schedule
3.13:
There are no "employee benefit plans" (as defined in Section
3.(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) maintained for the benefit of employees of Seller
or other employee benefit, bonus or fringe benefit plans maintained
for the benefit of the employees of Seller to which, or with respect
to which, Seller has a material liability for the payment of benefits
or makes material contributions annually (the "Plans").
Each of the Plans that is subject to ERISA has been administered
in compliance in all material respects with ERISA. Each of the Plans
intended to be "qualified" within the meaning of Section 401(a) of
the Code has a favorable determination letter from the Internal
Revenue Service (the "IRS") to the effect that it is so qualified.
Except as set forth on Schedule 3.13, none of the Plans is subject to
Title IV of ERISA. There are no pending or, to the Knowledge of
Seller, threatened material claims (other than routine claims for
benefits) by, on behalf of or against any of the Plans or any trusts
which are a part of such Plans.
Seller has furnished to Buyer a correct, complete and correct
copy of each plan, program, policy or arrangement which is set forth
in writing and which provides cash or property or other compensation
related benefits of any kind or description whatsoever to or on
behalf of any current of former employee or director of Seller or any
of their dependents and a complete description of any such plain,
program, policy or arrangement which is not set forth in writing
(collectively, the "Seller Benefit Plans"). A list of each Seller
Benefit Plan is set forth on Schedule 3.13.
Labor Matters. Seller is in compliance with all federal and
state laws respecting employment and employment practices, terms and
conditions of employment, wages and hours, and is not engaged in any
unfair labor or unlawful employment practice, the violation of or
engagement in which would have a Seller Material Adverse Effect.
Except as set forth on Schedule 3.14, there are no controversies
pending or, to the Knowledge of the Seller, threatened, between it
and any of its employees, which controversies have had or are
reasonably likely to have a Seller Material Adverse Effect. Except
as set forth on Schedule 3.14, Seller is not a party to any
collective bargaining agreement or other labor union contract
applicable to Persons employed by Seller. There are no unfair labor
practice complaints pending against Seller before the National Labor
Relations Board. To the Knowledge of Seller, there are no strikes,
slowdowns, work stoppages, lockouts, or threats thereof, by or with
respect to any of its employees.
Taxes.
Seller (i) has timely filed or caused to be filed on a timely
basis with the appropriate taxing authorities all material Tax
Returns (as hereinafter defined) required to be filed by or with
respect to Seller (including the consolidated federal income Tax
Returns and any consolidated, combined or unitary state Tax Returns
in which the Seller is included), and (ii) has paid or made adequate
provision for the payment of all Taxes (as hereinafter defined) shown
to be due on such Tax Returns or otherwise due and payable by the
Seller. All such Tax Returns are true, correct and complete in all
material respects.
Except as set forth on Schedule 3.15, (i) there are no liens for
Taxes with respect to the assets of Seller (except for statutory
liens for current taxes not yet delinquent) and no material claims
with respect to Taxes are being asserted by any taxing authority in
writing; (ii) none of the Tax Returns applicable to Seller are
currently being audited or examined by any taxing authority and there
is no other action or proceeding currently pending concerning Taxes
relating to the Seller; (iii) there is no material unpaid tax
deficiency, determination or proposed assessment currently
outstanding against Seller or for which the Seller could be jointly
or severally liable; (iv) there are no outstanding agreements or
waivers extending the statute of limitations relating to the
assessment of Taxes applicable to Seller; (v) the Seller is not a
party to any agreement that would result, separately or in the
aggregate, in the payment of an excess parachute payment pursuant to
Section 280G of the Code; (vi) the Seller is not a member of any
partnership or joint venture or the holder of a beneficial interest
in any trust (other than a trust that is treated as a grantor trust
or otherwise is disregarded as a separate taxable entity for federal
income tax purposes); and (vii) to the Seller's Knowledge, there are
no proposed reassessments of any of the Assets that will result in a
material increase in the amount of Tax to which such Assets will be
subject for periods after the Closing Date.
As used in this Agreement:
"Taxes" shall mean all taxes, levies, charges or fees including
income, corporation, advance corporation, gross receipts, transfer,
excise, property, sales, use, value-added, license, payroll, pay-as-
you-earn, withholding, social security and franchise or other
governmental taxes or charges, imposed by the United States or any
state, county, local or foreign government, and such term shall
include any interest, penalties or additions to tax attributable to
such taxes.
"Tax Return" shall mean any report, return or statement required
to be supplied to a taxing authority in connection with Taxes.
Environmental. (a) To the Knowledge of Seller, except as set
forth on Schedule 3.16(a), Seller possesses, and is in compliance
with, all material permits, licenses and government authorizations
relating to protection of the environment, pollution control and
hazardous materials applicable to Seller;
(b) To the Knowledge of Seller, except as set
forth on Schedule 3.16(b), neither Seller nor any of its Affiliates
has received notice from a state or federal governmental authority
that Seller is responsible under any applicable federal, state or
local law, regulation or ordinance relating to the protection of the
environment in effect at the time of this Agreement (the
"Environmental Laws") to investigate and/or remediate Hazardous
Materials (as hereinafter defined) on property Seller leases or
operates on (collectively, the "Environmental Claims"). For purposes
of this Agreement, "Hazardous Materials" shall mean any waste,
pollutant, hazardous substance, toxic, ignitable, reactive or
corrosive substance, hazardous waste, special waste, industrial
substance, by-product, process intermediate product or waste,
petroleum or petroleum-derived substance or waste, chemical liquids
or solids, liquid or gaseous products regulated under Environmental
Laws; and
(c) There are no underground storage tank systems
for which Seller is responsible under applicable laws or existing
agreements which have not been upgraded or removed in compliance with
40 CFR Part 280 and any other applicable laws.
Officers; Bank Accounts. Schedule 3.17 lists each of the
officers of Seller and all of the accounts (and signatures thereto)
of Seller with any bank, brokerage firm or other financial
institution or depository.
Certain Fees. Seller will not have any liability for any
financial advisory or finders' fees in connection with this Agreement
or the transactions contemplated hereby.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
Organization and Authority of Buyer. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware. Buyer has the corporate power and authority to
execute and deliver this Agreement and perform its obligations
hereunder. The execution and delivery of this Agreement and the
performance by Buyer of its covenants and agreements hereunder have
been duly and validly authorized by the Board of Directors of Buyer,
and no other corporate proceedings on the part of Buyer are necessary
to authorize the execution, delivery and performance of this Agreement
or the consummation of the transactions so contemplated. This
Agreement has been duly executed and delivered by Buyer and constitutes
a valid and binding agreement of Buyer, enforceable against Buyer in
accordance with its terms, except that (i) such enforcement may be
subject to any bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other laws, now or hereafter in effect, relating
to or limiting creditors' rights generally, and (ii) the remedy of
specific performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
Consents and Approvals; No Violations. Except for applicable
requirements of the HSR Act, neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby
will (a) conflict with or result in any breach of any provision of the
incorporation documents or by-laws of Buyer; (b) require any filing
with, or the obtaining of any permit, authorization, consent or
approval of, any governmental or regulatory authority; (c) violate,
conflict with or result in a default (or any event which, with notice
or lapse of time or both, would constitute a default) under, or give
rise to any right of termination, cancellation or acceleration under,
any of the terms, conditions or provisions of any note, mortgage, other
evidence of indebtedness, guarantee, license, agreement, lease or other
contract, instrument or obligation to which Buyer is a party or by
which Buyer or any of its assets may be bound; or (d) violate any
order, injunction, decree, statute, rule or regulation applicable to
Buyer, excluding from the foregoing clauses (b), (c) and (d) such
requirements, violations, conflicts, defaults or rights (i) which would
not adversely affect the ability of Buyer to consummate the
transactions contemplated by this Agreement or (ii) which become
applicable as a result of any acts or omissions by, or the status of or
any facts pertaining to, Seller.
Litigation. There is no claim, action, suit, proceeding or
governmental investigation pending or, to the Knowledge of Buyer (as
hereinafter defined), threatened against Buyer, by or before any court,
governmental or regulatory authority or by any third party which
challenges the validity of this Agreement or which would be reasonably
likely to adversely affect or restrict Buyer's ability to consummate
the transactions contemplated hereby.
Certain Fees. Except for the engagement of Warburg Dillon Read,
neither Buyer nor any of its Affiliates has employed any financial
advisor or finder or incurred any liability for any financial advisory
or finders' fees in connection with this Agreement or the transactions
contemplated hereby.
COVENANTS
Conduct of Seller's Business. Seller agrees that, during the
period from the date of this Agreement to the Closing, except as
otherwise contemplated by this Agreement, the Schedules or consented to
by Buyer in writing, Seller shall:
to use its reasonable best efforts to conduct its business
operations in the ordinary course consistent with past practice;
to use its reasonable best efforts to (i) maintain and preserve
its business operations, (ii) retain the services of its employees,
except for attrition of such employees in the ordinary course of
business, and (iii) maintain, preserve and retain relationships with
its suppliers and customers;
not to sell or dispose of any material business assets, except in
the ordinary course of business;
not to amend its certificate of incorporation or bylaws;
not to incur any indebtedness for borrowed money or guarantee any
such indebtedness of another person, other than borrowings in the
ordinary course of business consistent with past practice;
not to change its accounting policies except as required by
generally accepted accounting principles; and
not to make any change in employment terms for any of its
employees other than terminations for cause or customary salary
increases and adjustments in benefits in the ordinary course of
business consistent with past practice, other than severance
commitments that are (and still remain) the sole responsibility of
Seller and its Affiliates.
Access to Information.
Between the date of this Agreement and the Closing, Seller shall
(i) give Buyer and its authorized representatives reasonable access to
all its books, records, offices and other facilities and properties and
to the Seller Executives (as hereinafter defined); (ii) permit Buyer to
make such inspections thereof as Buyer may reasonably request; and
(iii) cause its officers to furnish Buyer with such financial and
operating data and other information with respect to its business and
properties as Buyer may from time to time reasonably request; provided,
however, that any such investigation shall be conducted during normal
business hours under the supervision of Seller's personnel and in such
a manner as to maintain the confidentiality of this Agreement and the
transactions contemplated hereby and not interfere unreasonably with
the business operations of Seller.
All information concerning Seller furnished or provided by Seller
or their Affiliates to Buyer or its representatives (whether furnished
before or after the date of this Agreement) shall be held subject to a
confidentiality agreement by and between United Parcel Service of
America, Inc. and ▇▇▇▇▇▇▇ Leasing Corporation, dated as of August 24,
1999 (the "Confidentiality Agreement").
Consents. (a) Each of Seller and Buyer shall cooperate, and use
its reasonable best efforts, to make all filings (including without
limitation all filings required under the HSR Act) and obtain all
licenses, permits, consents, approvals, authorizations, qualifications
and orders of governmental authorities and other third parties
necessary to consummate the transactions contemplated by this
Agreement. In addition to the foregoing, Buyer agrees to provide such
assurances as to financial capability, resources and creditworthiness
as may be reasonably requested by any third party whose consent or
approval is sought in connection with the transactions contemplated
hereby.
(b) With respect to any agreements for which any required
consent or approval is not obtained prior to the Closing, Seller and
Buyer shall each use their reasonable best efforts to obtain any such
consent or approval after the Closing Date until such consent or
approval has been obtained.
Reasonable Best Efforts. Each of Seller and Buyer shall
cooperate, and use its reasonable best efforts to take, or cause to be
taken, all action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate the transactions contemplated by this Agreement.
Public Announcements. Except as otherwise agreed to by the
parties, the parties shall not issue any report, statement or press
release or otherwise make any public statements with respect to this
Agreement and the transactions contemplated hereby, except as in the
reasonable judgment of the party may be required by law. Upon the
execution of this Agreement and the Closing, Seller and Buyer will
consult with each other with respect to the issuance of a joint report,
statement or press release with respect to this Agreement and the
transactions contemplated hereby.
Covenant to Satisfy Conditions. Seller will use its reasonable
best efforts to ensure that the conditions set forth in Article VI
hereof are satisfied, insofar as such matters are within the control of
Seller, and Buyer will use its reasonable best efforts to ensure that
the conditions set forth in Article VI hereof are satisfied, insofar as
such matters are within the control of Buyer. Seller and Buyer further
covenant and agree, with respect to a threatened or pending preliminary
or permanent injunction or other order, decree or ruling or statute,
rule, regulation or executive order that would adversely affect the
ability of the parties hereto to consummate the transactions
contemplated hereby, to use all reasonable efforts to prevent or lift
the entry, enactment or promulgation thereof, as the case may be.
Employees; Employee Benefits. (a) Buyer shall treat all service
completed by a Transferred Employee with Seller or any Affiliate
thereof, and any predecessor thereto, the same as service completed
with Buyer for all purposes, including waiting periods relating to
preexisting conditions under medical plans, vacations, severance pay,
eligibility to participate in, vesting or payment of benefits under,
and eligibility for early retirement or any subsidized benefit provided
for under any employee benefit plan (including, but not limited to, any
"employee benefit plan" as defined in Section 3(3) of ERISA) maintained
by Buyer on or after the Closing Date except for purposes of computing
benefits under the actual benefit formula in a pension plan (as defined
in Section 3(2) of ERISA). Prior to the Closing, Seller shall furnish
Buyer with a list of the length of service with it or its Affiliates
for each of the Transferred Employees. For purposes of computing
deductible amounts (or like adjustments or limitations on coverage)
under any employee welfare benefit plan (including, without limitation,
any "employee welfare benefit plan" as defined in Section 3(l) of
ERISA), expenses and claims previously recognized for similar purposes
under the applicable welfare benefit plan of Seller or any Affiliate
shall be credited or recognized under the comparable plan maintained
after the Closing Date by Buyer.
(b) After the Closing Date, Buyer shall be responsible for,
and shall indemnify and hold harmless Seller and their Affiliates and
their officers, directors, employees, Affiliates and agents and the
fiduciaries (including plan administrators) of the Plans, from and
against, any and all claims, losses, damages, costs and expenses
(including, without limitation, attorneys' fees and expenses) and other
liabilities and obligations relating to or arising out of (i) all
salaries, bonuses, commissions, vacation entitlements and other
benefits accrued by Seller but unpaid as of the Closing, and (ii) any
claims of, or damages or penalties sought by, any Transferred Employee,
or any governmental entity on behalf of or concerning any Transferred
Employee, with respect to any act or failure to act by Buyer to the
extent arising from the employment, discharge, layoff or termination of
any Transferred Employee after the Closing.
Supplemental Disclosure. If any event or matter arises or comes
to the attention of Seller or Parent after the date of this Agreement
which, if existing or occurring or known to Seller or Parent at the
date of this Agreement, would have been required to be set forth or
described in the Schedules or which is necessary to correct any
information in the Schedules which has been rendered inaccurate thereby
in any material respect, then Seller shall promptly supplement or amend
and deliver to Buyer the Schedules which it has delivered pursuant to
this Agreement, and Buyer shall have the right, within five business
days of receipt by Buyer of such supplement or amendment, to terminate
the Agreement pursuant to Section 7.1(e).
Investigation by Buyer. Buyer has conducted its own independent
review and analysis of the business, operations, technology, assets,
liabilities, results of operations, financial condition and prospects
of Seller and acknowledges that Seller has provided Buyer with access
to its personnel, properties, premises and records for this purpose.
In entering into this Agreement, Buyer has relied solely upon its own
investigation and analysis, and Buyer (a) acknowledges that neither
Seller nor any of its respective directors, officers, employees,
Affiliates, controlling Persons, agents or representatives makes or has
made any representation or warranty, either express or implied, as to
the accuracy or completeness of any of the information provided or made
available to Buyer or its directors, officers, employees, Affiliates,
controlling Persons, agents or representatives, and (b) agrees, to the
fullest extent permitted by law, that neither Seller nor any of its
respective directors, officers, employees, Affiliates, controlling
Persons, agents or representatives shall have any liability or
responsibility whatsoever to Buyer or its directors, officers,
employees, Affiliates, controlling Persons, agents or representatives
on any basis (including, without limitation, in contract or tort, under
federal or state securities laws or otherwise) based upon any
information provided or made available, or statements made, to Buyer or
its directors, officers, employees, Affiliates, controlling Persons,
agents or representatives (or any omissions therefrom), except as and
only to the extent expressly set forth herein with respect to the
representations and warranties of Seller in Article III and subject to
the limitations and restrictions contained herein. Buyer's sole rights
and remedies relative to transactions contemplated herein are limited
to those set forth herein.
Additional Actions. Following the Closing, Buyer, Parent and
Seller agree to take such actions with regard to Seller as are
specified on Schedule 5.10.
Parent Guarantee. Parent hereby unconditionally and irrevocably
guarantees to Buyer the full payment and performance of all of the
obligations of Seller (and each Seller individually) under this
Agreement, including without limitation under Article IX hereof.
CONDITIONS TO OBLIGATIONS OF THE PARTIES
Conditions to Each Party's Obligation. The respective obligation
of each party to consummate the transactions contemplated herein is
subject to the satisfaction at or prior to the Closing of the following
conditions:
No statute, rule or regulation shall have been enacted,
promulgated or enforced by any court or governmental authority which
prohibits or restricts the consummation of the transactions
contemplated hereby;
There shall not be in effect any judgment, order, injunction or
decree of any court of competent jurisdiction enjoining the
consummation of the transactions contemplated hereby;
Any waiting periods applicable to the transactions contemplated by
this Agreement under the HSR Act shall have expired or early
termination shall have been granted;
All consents, authorizations, waivers and approvals of any
governmental authority or other regulatory body or from parties to
contracts or other agreements to which Seller is a party as may be
required to be obtained in connection with the performance of this
Agreement, the failure to obtain which would prevent the consummation
of the transactions contemplated hereby or have a Seller Material
Adverse Effect, shall have been obtained; or
The transactions contemplated by that Stock Purchase Agreement,
dated the date hereof, between Buyer, Seller, UPS Truck Leasing, Inc.
and ▇▇▇▇▇▇▇ Leasing Corp. shall have been consummated simultaneously
with the Closing.
Conditions to Obligations of Seller. The obligations of Seller to
consummate the transactions contemplated hereby are further subject to
the satisfaction (or waiver) at or prior to the Closing of the
following conditions:
The representations and warranties of Buyer contained in Article
IV of this Agreement shall be true and correct in all material respects
at the date hereof and as of the Closing as if made at and as of such
time, except for changes permitted or contemplated hereby and except
for representations and warranties which are as of a specific date;
Buyer shall have performed in all material respects its
obligations under this Agreement required to be performed by it at or
prior to the Closing pursuant to the terms hereof;
Buyer shall have delivered to Seller or its Affiliates those items
set forth in Section 1.12 hereof;
Buyer or its Affiliate shall have executed and delivered a
staffing services agreement in the form of Exhibit 6.2(d) hereto (the
"Staffing Services Agreement"); and
Buyer or its Affiliate shall have executed and delivered a
transition services agreement ("the Transition Agreement") in form and
substance reasonably satisfactory to Buyer and Seller.
Conditions to Obligations of Buyer. The obligations of Buyer to
consummate the transactions contemplated hereby are further subject to
the satisfaction (or waiver) at or prior to the Closing of the
following conditions:
The representations and warranties of Seller contained in Article
III of this Agreement shall be true and correct in all material
respects at the date hereof and as of the Closing as if made at and as
of such time, except for changes permitted or contemplated hereby and
except for representations and warranties which are as of a specific
date;
Seller shall have performed in all material respects its
obligations under this Agreement required to be performed by it at or
prior to the Closing pursuant to the terms hereof;
Seller shall have delivered to Buyer those items set forth in
Section 1.11 hereof;
Seller or its Affiliate shall have executed and delivered the
Staffing Services Agreement; and
Seller or its Affiliate shall have executed and delivered the
Transition Agreement.
TERMINATION
Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned:
at any time, by mutual written consent of Seller and Buyer;
by either party if the transactions contemplated hereby shall have
been permanently enjoined by a court of competent jurisdiction,
provided that no party hereto who brought or is affiliated with the
party who brought the action seeking the permanent enjoinment of the
transactions contemplated hereby may seek termination of this Agreement
pursuant to this Section 7.1(b);
by Buyer if (i) any of the conditions set forth in Sections 6.1
or 6.3 shall have become incapable of fulfillment and shall not have
been waived by Buyer or (ii) Seller shall breach in any material
respect any of its representations, warranties, covenants or other
obligations hereunder and, within twenty (20) days after written notice
of such breach to Seller from Buyer, such breach shall not have been
cured in all material respects or waived by Buyer, or Seller shall not
have provided reasonable assurance to Buyer that such breach will be
cured in all material respects on or before the Closing Date; or
by Seller if (i) any of the conditions set forth in Sections 6.1
or 6.2 shall have become incapable of fulfillment and shall not have
been waived by Seller or (ii) Buyer shall breach in any material
respect any of its representations, warranties, covenants or other
obligations hereunder and, within twenty (20) days after written notice
of such breach to Buyer from Seller, such breach shall not have been
cured in all material respects or waived by Seller or Buyer shall not
have provided reasonable assurance to Seller that such breach will be
cured in all material respects on or before the Closing Date;
by Buyer, within five (5) days following receipt of any supplement
or amendment to the Schedules, by written notice to Seller if the
matter which gives rise to such supplement or amendment individually,
or together with any other such matters, in the aggregate has caused
any of the representations and warranties of Seller set forth in
Article III (without giving effect to such supplement or amendment) to
be inaccurate in any material respect; or
by Buyer or Seller, at any time on or after February 1, 2000, if
the Closing shall not have occurred on or prior to such date; provided,
however, that the right to terminate this Agreement under this Section
7.1(f) shall not be available to any party whose failure to fulfill any
obligation under this Agreement has been the primary cause of, or
resulted in, the failure of the Closing to have occurred on or before
such date.
Procedure and Effect of Termination. In the event of the
termination of this Agreement and the abandonment of the transactions
contemplated hereby pursuant to Section 7.1 hereof, written notice
thereof shall forthwith be given by Seller, on the one hand, or Buyer,
on the other hand, so terminating to the other party and this Agreement
shall terminate and the transactions contemplated hereby shall be
abandoned, without further action by Seller, or Buyer. If this
Agreement is terminated pursuant to Section 7.1 hereof:
each party shall redeliver all documents, work papers and other
materials of the other parties relating to the transactions
contemplated hereby, whether so obtained before or after the execution
hereof, to the party furnishing the same or, upon prior written notice
to such party, shall destroy all such documents, work papers and other
materials and deliver notice to the parties seeking destruction of such
documents that such destruction has been completed, and all
confidential information received by any party hereto with respect to
the other party shall be treated in accordance with the Confidentiality
Agreement and Section 5.2(b) hereof;
all filings, applications and other submissions made pursuant
hereto shall, at the option of Seller, and to the extent practicable,
be withdrawn from the agency or other Person to which made; and
there shall be no liability or obligation hereunder on the part of
Seller or Buyer or any of their respective directors, officers,
employees, Affiliates, controlling Persons, agents or representatives,
except that Seller or Buyer, as the case may be, shall have liability
to the other party if the basis of termination is a willful, material
breach by Seller or Buyer, as the case may be, of one or more of the
provisions of this Agreement, and except that the obligations provided
for in this Section in Section 10.1 hereof and in the Confidentiality
Agreement and the non-compete obligations of the Alliance Agreement
shall survive any such termination.
SURVIVAL OF REPRESENTATIONS
Survival of Representations, Warranties and Agreements. The
representations and warranties of Seller and Buyer made in Articles III
and IV hereof, respectively, shall not survive the Closing and, except
as provided in Section 7.2(c) hereof, shall not survive any termination
of this Agreement; provided that any covenant or agreement of any party
contained herein which by its terms shall survive the Closing shall
survive until fully performed, and provided, further, that this Section
8.1 is not intended in any way to limit any covenant or agreement of
the parties which contemplates performance after the Closing,
including, without limitation, the covenants and agreements set forth
in Section 5.7 hereof.
INDEMNIFICATION
Indemnification Obligations of Seller. Seller shall defend and
hold harmless Buyer and its Affiliates, each of their respective
officers, directors, employees, agents and representatives and each of
the heirs, executors, successors and assigns of any of the foregoing
(collectively, the "Buyer Indemnified Parties") from, against and in
respect of any and all claims, liabilities, obligations, losses, costs,
expenses, penalties, fines and judgments (at equity or at law) and
damages whenever arising or incurred (including, without limitation,
amounts paid in settlement, costs of investigation and reasonable
attorneys' fees and expenses) arising out of or relating to the (i)
Excluded Liabilities and (ii) any accounts receivable of Seller
reflected in the Closing Date Working Capital that Buyer is unable to
collect within 90 days following the Closing Date; provided (A) Buyer
has used its reasonable best efforts to collect such receivable, (B) in
the event Buyer seeks indemnity under Section 9.1(ii) of this
Agreement, Buyer shall assign such receivable and all proceeds thereof
to Seller and (C) the indemnification to which Seller is entitled will
be limited to the face amount of any uncollected receivables. The
claims, liabilities, obligations, losses, costs, expenses, penalties,
fines and damages of the Buyer Indemnified Parties described in this
Section 9.1 as to which the Buyer Indemnified Parties are entitled to
indemnification are hereinafter collectively referred to as "Buyer
Losses."
Indemnification Procedure.
Promptly after receipt by a Buyer Indemnified Party of notice by
a third party of threatened or filed claim or of the threatened or
actual commencement of any action or proceeding with respect to which
such Buyer Indemnified Party may be entitled to receive payment from
the other party for any Buyer Losses, such Buyer Indemnified Party
shall notify Seller, within 30 days of the notice of threatening or
filing of such claim or of the threatened or actual commencement of
such action or proceeding; provided, however, that the failure to so
notify Seller shall relieve Buyer from liability under this Agreement
with respect to such claim only if, and only to the extent that, such
failure to notify Seller results in the forfeiture by Seller of rights
and defenses otherwise available to Seller with respect to such claim.
Seller shall have the right, upon written notice delivered to the Buyer
Indemnified Party within 30 days thereafter, to assume the defense of
such action or proceeding, including the employment of counsel
reasonably satisfactory to the Buyer Indemnified Party and the payment
of the fees and disbursements of such counsel. In any action or
proceeding with respect to which indemnification is being sought
hereunder, the Buyer Indemnified Party or Seller, whichever is not
assuming the defense of such action, shall have the right to
participate in such litigation and to retain its own counsel at such
party's own expense. Seller or the Buyer Indemnified Party, as the
case may be, shall at all times use reasonable efforts to keep Seller
or the Buyer Indemnified Party, as the case may be, reasonably apprised
of the status of the defense of any action the defense of which they
are maintaining and to cooperate in good faith with each other with
respect to the defense of any such action.
The Buyer Indemnified Party may not settle or compromise any claim
or consent to the entry of any judgment with respect to which
indemnification is being sought hereunder without the prior written
consent of Seller. Seller may not, without the prior written consent
of the Buyer Indemnified Party, settle or compromise any claim or
consent to the entry of any judgment with respect to which
indemnification is being sought hereunder unless (i) simultaneously
with the effectiveness of such settlement, compromise or consent,
Seller pays in full any obligation imposed on the Buyer Indemnified
Party by such settlement, compromise or consent and (ii) such
settlement, compromise or consent does not contain any equitable order,
judgment or term which in any manner affects, restrains or interferes
with the business of the Buyer Indemnified Party or any of the Buyer
Indemnified Party's affiliates.
In the event the Buyer Indemnified Party shall claim a right to
payment pursuant to this Agreement not involving a third party claim
covered by Section 9.2(a), the Buyer Indemnified shall send written
notice of such claim to Seller. Such notice shall specify the basis
for such claim. As promptly as possible after the Buyer Indemnified
Party has given such notice, such Buyer Indemnified Party and Seller
shall establish the merits and amount of such claim (by mutual
agreement, litigation, arbitration or otherwise) and, within five
business days of the final determination of the merits and amount of
such claim, Seller shall pay to the Buyer Indemnified Party immediately
available funds in an amount equal to such claim as determined
hereunder.
Exclusive Remedies. Following the Closing, neither Buyer nor
Seller shall make any claim nor have any remedy against the other party
arising out of or relating to the transactions contemplated hereby
other than any claim arising out of or related to (a) indemnification
pursuant to Section 5.7(b) or 9.1 or (b) a breach of any covenant set
forth in this Agreement or any agreement contemplated hereby required
to be performed after the Closing.
MISCELLANEOUS
Fees and Expenses. Except as set forth in this Section 10.1,
whether or not the transactions contemplated herein are consummated
pursuant hereto, each of Seller and Buyer shall pay all fees and
expenses incurred by, or on behalf of, Seller or Buyer, respectively,
in connection with, or in anticipation of, this Agreement and the
consummation of the transactions contemplated hereby.
Further Assurances. From time to time after the Closing Date, at
the reasonable request of the other party hereto and at the expense of
the party so requesting, each of the parties hereto shall execute and
deliver to such requesting party such documents and take such other
action as such requesting party may reasonably request in order to
consummate more effectively the transactions contemplated hereby.
Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement
shall be in writing and may be given by any of the following methods:
(a) personal delivery; (b) facsimile transmission; (c) registered or
certified mail, postage prepaid, return receipt requested; or (d) UPS
next day air or document exchange. Notices shall be sent to the
appropriate party at its address or facsimile number given below (or at
such other address or facsimile number for such party as shall be
specified by notice given hereunder):
If to Seller, to:
▇▇▇▇▇▇▇ Leasing Corp.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ Leasing Corp.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
If to Buyer, to:
United Parcel Service, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Legal Department
with a copy to:
King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ III
All such notices, requests, demands, waivers and communications shall
be deemed received upon (i) actual receipt thereof by the addressee,
(ii) actual delivery thereof to the appropriate address or (iii) in the
case of a facsimile transmissions, upon transmission thereof by the
sender and issuance by the transmitting machine of a confirmation slip
that the number of pages constituting the notice have been transmitted
without error. In the case of notices sent by facsimile transmission,
the sender shall contemporaneously mail a copy of the notice to the
addressee at the address provided for above. However, such mailing
shall in no way alter the time at which the facsimile notice is deemed
received.
Severability. Should any provision of this Agreement for any
reason be declared invalid or unenforceable, such decision shall not
affect the validity or enforceability of any of the other provisions of
this Agreement, which remaining provisions shall remain in full force
and effect and the application of such invalid or unenforceable
provision to Persons or circumstances other than those as to which it
is held invalid or unenforceable shall be valid and enforced to the
fullest extent permitted by law.
Binding Effect; Assignment. This Agreement and all of the
provisions hereof shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and permitted
assigns. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned, directly or indirectly,
including, without limitation, by operation of law, by any party hereto
without the prior written consent of the other parties hereto.
No Third Party Beneficiaries. This Agreement is solely for the
benefit of Seller, and its successors and permitted assigns, with
respect to the obligations of Buyer under this Agreement, and for the
benefit of Buyer, and its respective successors and permitted assigns,
with respect to the obligations of Seller, under this Agreement, and
for the benefit of the Employees with respect to the obligations of
Buyer under Section 5.7 of this Agreement, and this Agreement shall not
be deemed to confer upon or give to any other third party any remedy,
claim, liability, reimbursement, cause of action or other right.
Interpretation.
The Article and Section headings contained in this Agreement are
solely for the purpose of reference, are not part of the agreement of
the parties and shall not in any way affect the meaning or
interpretation of this Agreement.
As used in this Agreement, the term "Person" shall mean and
include an individual, a partnership, a joint venture, a corporation,
a trust, an unincorporated organization and a government or any
department or agency thereof.
As used in this Agreement, the term "Affiliate" shall mean a
person that directly or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with the
person specified.
Jurisdiction and Consent to Service. Without limiting the
jurisdiction or venue of any other court, each of Seller and Buyer (a)
agrees that any suit, action or proceeding arising out of or relating
to this Agreement may be brought solely in the state or federal courts
of Delaware; (b) consents to the exclusive jurisdiction of each such
court in any suit, action or proceeding relating to or arising out of
this Agreement; (c) waives any objection which it may have to the
laying of venue in any such suit, action or proceeding in any such
court; and (d) agrees that service of any court paper may be made in
such manner as may be provided under applicable laws or court rules
governing service of process.
Entire Agreement. This Agreement, the Confidentiality Agreement,
the Alliance Agreement, the Schedules and other documents referred to
herein or delivered pursuant hereto which form a part hereof constitute
the entire agreement among the parties with respect to the subject
matter hereof and supersede all other prior agreements and
understandings, both written and oral, between the parties or any of
them with respect to the subject matter hereof.
Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware (regardless of the
laws that might otherwise govern under applicable principles of
conflicts of laws thereof) as to all matters, including but not limited
to matters of validity, construction, effect, performance and remedies.
Specific Performance. The parties acknowledge and agree that any
breach of the terms of this Agreement would give rise to irreparable
harm for which money damages would not be an adequate remedy and
accordingly the parties agree that, in addition to any other remedies,
each shall be entitled to enforce the terms of this Agreement by a
decree of specific performance without the necessity of proving the
inadequacy of money damages as a remedy.
Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one and the same agreement.
Amendment, Modification and Waiver. This Agreement may be
amended, modified or supplemented at any time by written agreement of
Seller and Buyer. Any failure of Seller or Buyer to comply with any
term or provision of this Agreement may be waived, with respect to
Buyer, by Seller and, with respect to Seller, by Buyer, by an
instrument in writing signed by or on behalf of the appropriate party,
but such waiver or failure to insist upon strict compliance with such
term or provision shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure to comply.
Knowledge. "To the Knowledge of Seller" or any similar phrase
contained in this Agreement shall mean the actual knowledge of the
officers of Seller and Parent. "To the Knowledge of Buyer" or any
similar phrase contained in this Agreement shall mean the actual
knowledge of the officers of Buyer. Solely for the purposes of this
Section 10.14, the officers of Buyer and Seller shall be deemed to have
actual knowledge of any written notice previously delivered to Buyer or
Seller, respectively.
Schedules and Exhibits. The Schedules and all exhibits hereto are
hereby incorporated into this Agreement and are hereby made a party
hereof as if set out in full in this Agreement.
Arbitration.
Any controversy, claim or question or interpretation arising out
of or relating to this Agreement or the breach thereof shall be finally
settled by arbitration in the State of Delaware under the then-
effective Commercial Arbitration Rules of the American Arbitration
Association as modified by this Agreement, and judgment on the award
rendered by the arbitrators may be entered in any court having
jurisdiction. The award rendered by the arbitrators shall be final and
binding on the parties and not subject to further appeal. Such
arbitration can be initiated by written notice by either party to the
other party, which notice shall identify the claimant's selected
arbitrator. The party receiving such notice shall identify its
arbitrator within five (5) business days following its receipt of such
notice. The arbitrator selected by the claimant and the arbitrator
selected by the respondent shall, within five (5) business days of
their appointment, select a third neutral arbitrator. In the event
that they are unable to do so, either party may request the American
Arbitration Association to appoint the third neutral arbitrator. The
arbitrators shall have the authority to award any remedy or relief that
a court in Delaware could order or grant, including, without
limitation, specific performance of any obligation created under this
agreement, the awarding of punitive damages, the issuance of injunctive
or other provisional relief, or the imposition of sanctions for abuse
or frustration of the arbitration process. The arbitration awards will
be in writing and specify the factual and legal basis for the award.
It is the intent of the parties that any arbitration shall be
concluded as quickly as practicable (but, barring extraordinary
circumstances, in any event not more than twenty (20) days after the
date the third arbitrator is selected). Unless the parties otherwise
agree, once commenced, the hearing on the disputed matters shall be
held four days a week until concluded with each hearing date to begin
at 9:00 a.m. and to conclude at 5:00 p.m. The arbitrators shall use
their best efforts to issue the final award or awards within a period
of five (5) business days after closure of the proceedings. Failure of
the arbitrators to meet the time limits of this Section 10.16 shall not
be a basis for challenging the award.
The arbitrators shall instruct the non-prevailing party to pay all
costs of the proceedings, including the fees and expenses of the
arbitrators and the reasonable attorneys' fees and expenses of the
prevailing party. If the arbitrators determine that there is not a
prevailing party, each party shall be instructed to bear its own costs
and to pay one-half of the fees and expenses of the arbitrators.
Notwithstanding the foregoing, nothing contained herein shall
prevent either party from seeking injunctive relief in any court.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
WORLDWIDE DEDICATED SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer and President
▇▇▇▇▇▇▇ TRUCK LEASING CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President Finance and Treasurer
▇▇▇▇▇▇▇ LOGISTICS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
▇▇▇▇▇▇▇ DEDICATED CARRIAGE SERVICES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
▇▇▇▇▇▇▇ TRANSPORTATION SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President