FIRST AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
This First Amended and Restated Stock Purchase Agreement (the "Agreement"),
dated as of May 29, 1998, is by and between Precept Transportation Services,
L.L.C., a Nevada limited liability company ("Seller"), Logistics Management,
LLC, a Kentucky limited liability company ("Purchaser"), the owners of
Purchaser, Xxxxxxx Xxxxxx and Association Services, Inc., a Kentucky corporation
(collectively, "Shareholders") and the managers of Purchaser, Xxxxxxx Xxxx and
Xxx Xxxxxx ("Managers").
W I T N E S S E T H :
WHEREAS, the parties have previously entered into that certain Stock
Purchase Agreement dated as of April 9, 1998 (the "Original Agreement");
WHEREAS, Seller acquired an interest in certain of the shares of the issued
and outstanding capital stock of U.S. Trucking, Inc. a Nevada corporation ("U.S.
Trucking") (the "U.S. Trucking Stock"), and certain of the issued and
outstanding capital stock of American Trucking, Inc., a Nevada corporation
("American Trucking") (the "American Trucking Stock"), pursuant to an Agreement
and Plan of Reorganization dated as of November 16, 1997, which closed on March
19, 1998 (the "Stock Transfer Date");
WHEREAS, pursuant to the Original Agreement, Purchaser agreed to buy, and
Seller agreed to sell, Seller's interest in the U.S. Trucking Stock;
WHEREAS, the parties wish to amend and restate the Original Agreement to
include the American Trucking Stock in the sale transaction;
NOW, THEREFORE, in consideration of the mutual representations, warranties
and covenants contained in this Agreement, and on the terms and subject to the
conditions set forth in this Agreement, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"best knowledge", "have no knowledge of", or "do not know of" and
similar phrases shall mean (unless stated otherwise) (i) in the case of a
natural person, the particular fact was known, or not known, as the context
requires, to such person after diligent investigation and inquiry by such
person, and (ii) in the case of an entity, the particular fact was known, or not
known, as the
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context requires, to any employee of such entity after diligent investigation
and inquiry by the principal executive officer of such entity.
"Closing" means the closing of the transactions contemplated by this
Agreement, which shall occur at 10:00 a.m., local time, on the Closing Date in
the offices of Xxxxxxx Xxxxxx L.L.P., 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000, or at such other time and place as shall be mutually agreed in writing by
the parties hereto.
"Closing Date" means the date which is five (5) business days after
the satisfaction of the conditions precedent set forth in Articles VII or VIII
below or such other date as may be mutually agreed in writing by the parties
hereto; provided that the date may not be later than June 30, 1998.
"Corporations" means U.S. Trucking and American Trucking.
"Damages" shall have the meaning set forth in Section 10.1.
"Financial Statements" means U.S. Trucking's audited consolidated
balance sheet and related consolidated statements of income, retained earnings
and cash flows for the twelve-month period ended December 31, 1996, including
the notes thereto, unaudited consolidated balance sheet and related consolidated
statements of income, retained earnings and cash flows for the twelve-month
period ended December 31, 1997, including the notes thereto, and the unaudited
consolidated balance sheet and related consolidated statements of income,
retained earnings and cash flows for the two-month period ended February 28,
1998.
"Ordinary course of business" means the usual and customary way in
which an entity has conducted its business in the past.
ARTICLE II
PURCHASE AND SALE
SECTION 2.1. PURCHASE AND SALE OF STOCK. Subject to and upon the terms and
conditions contained in this Agreement, at the Closing, Seller shall sell,
transfer, assign, convey and deliver to Purchaser, and Purchaser shall purchase,
accept and acquire from Seller, any and all right title and interest of Seller
in the U.S. Trucking Stock and the American Trucking Stock (collectively, the
"Stock").
SECTION 2.2. PURCHASE PRICE. The total purchase price for the Stock shall
be as follows:
(a) $200,000 in cash (the "Cash Consideration"), payable to Seller by wire
transfer of immediately available funds on the Closing Date; and
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(b) $1,750,000 payable by a promissory note from Purchaser to Seller, in
the form of Exhibit 2.2(b)(i) hereto (the "Note").
The Note shall be secured by a stock pledge agreements in the form of Exhibit
2.2(b)(ii) hereto (the "Stock Pledge Agreements") and guaranteed by the personal
guaranty of Xxxxxxx Xxxx in the form of Exhibit 2.2(b)(iii) hereto (the
"Guaranty").
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants as follows:
SECTION 3.1. OWNERSHIP OF THE STOCK. The Seller owns such title to the
Stock as was transferred to it from USTS on the Stock Transfer Date. At the
Closing, Seller will convey to Purchaser such interest.
SECTION 3.2. ORGANIZATION AND GOOD STANDING; QUALIFICATION. Seller is a
limited liability company duly organized, validly existing and in good standing
under the laws of its state of organization, with all requisite corporate power
and authority to carry on the business in which it is engaged, to own the
properties it owns, to execute and deliver this Agreement and to consummate the
transactions contemplated hereby.
SECTION 3.3. AUTHORIZATION AND VALIDITY. The execution, delivery and
performance by Seller of this Agreement and any other agreements contemplated
hereby, and the consummation of the transactions contemplated hereby and
thereby, have been duly authorized by Seller. This Agreement and any other
agreement contemplated hereby have been duly executed and delivered by Seller
and assuming the due authorization, execution and delivery of this Agreement and
each other agreement contemplated hereby by the Purchaser constitute or will
constitute legal, valid and binding obligations of Seller, enforceable against
Seller in accordance with their respective terms, except as may be limited by
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally or the availability of equitable remedies.
SECTION 3.4. NO VIOLATION. Neither the execution, delivery or performance
of this Agreement or the other agreements contemplated hereby nor the
consummation of the transactions contemplated hereby or thereby will (i)
conflict with, or result in a violation or breach of the terms, conditions or
provisions of, or constitute a default under, the Articles of Organization or
Regulations of Seller or, to Seller's actual knowledge, any agreement, indenture
or other instrument under which Seller is bound, or (ii) violate or conflict
with any judgment, decree, order, statute, rule or regulation of any court or
any public, governmental or regulatory agency or body having jurisdiction over
Seller. To Seller's actual knowledge, neither the execution, delivery or
performance of this Agreement or the other agreements contemplated hereby nor
the consummation of the transactions contemplated hereby or thereby will (i)
conflict with, or result in a violation or breach of the terms, conditions or
provisions of, or constitute a default under, the Articles of Incorporation or
Bylaws
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of the Corporations or any agreement, indenture or other instrument under
which the Corporations are bound, or (ii) violate or conflict with any
judgment, decree, order, statute, rule or regulation of any court or any
public, governmental or regulatory agency or body having jurisdiction over
the Corporations or the Stock.
SECTION 3.5. FINDER'S FEE. Seller has not incurred any obligation for any
finder's, broker's or agent's fee in connection with the transactions
contemplated hereby.
SECTION 3.6. RELEASE BY SELLER. Effective upon the Closing, the Seller,
for itself and its heirs, executors, administrators, successors and assigns,
hereby fully and unconditionally releases and forever discharges and holds
harmless Purchaser and Managers and their respective affiliates, employees,
officers, directors, successors and assigns from any and all claims, demands,
losses, costs, expenses (including attorneys' fees and expenses), obligations,
liabilities and/or damages of every kind and nature whatsoever, in each case
whether absolute or contingent, whether liquidated or unliquidated, and whether
or not now existing or known, relating in any way, directly or indirectly, to
the Corporations, that the Seller may now have or may hereafter claim to have
against Purchaser and Managers, their respective affiliates, employees,
officers, directors, successors or assigns. Notwithstanding the foregoing, this
Section 3.6 shall not affect any party's entitlement to indemnity, or remedies
of the parties for Damages, as defined herein, or for breaches of or related to
this Agreement or the transactions contemplated hereby, as set forth in Article
X or otherwise.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER, SHAREHOLDERS AND MANAGERS
Purchaser, Shareholders and Managers represent and warrant that the
following are true and correct as of the date hereof and will be true and
correct through the Closing Date as if made on that date:
SECTION 4.1. ORGANIZATION AND GOOD STANDING. Purchaser is a limited
liability company duly organized, validly existing and in good standing under
the laws of the state of its organization, with all requisite power and
authority to carry on the business in which it is engaged, to own the properties
it owns, to execute and deliver this Agreement and to consummate the
transactions contemplated hereby.
SECTION 4.2. AUTHORIZATION AND VALIDITY. The execution, delivery and
performance by Purchaser of this Agreement and the other agreements contemplated
hereby, and the consummation of the transactions contemplated hereby and
thereby, have been duly authorized by Purchaser. This Agreement and each other
agreement contemplated hereby have been duly executed and delivered
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by Purchaser, Shareholders and Managers and constitute or will constitute
legal, valid and binding obligations of Purchaser, Shareholders and Managers,
enforceable against Purchaser, Shareholders and Managers in accordance with
their respective terms, except as may be limited by applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally or the
availability of equitable remedies.
SECTION 4.3. NO VIOLATION. Neither the execution, delivery or performance
of this Agreement or the other agreements contemplated hereby nor the
consummation of the transactions contemplated hereby or thereby will (i)
conflict with, or result in a violation or breach of the terms, conditions and
provisions of, or constitute a default under, the Articles of Organization or
Regulations of Purchaser or any agreement, indenture or other instrument under
which Purchaser, Shareholders or Managers are bound or (ii) violate or conflict
with any judgment, decree, order, statute, rule or regulation of any court or
any public, governmental or regulatory agency or body having jurisdiction over
Purchaser, Shareholders, Managers or the properties or assets of Purchaser,
Shareholders or Managers.
SECTION 4.4. FINDER'S FEE. Neither Purchaser, Shareholders, nor Managers
has incurred any obligation for any finder's, broker's or agent's fee in
connection with the transactions contemplated hereby.
SECTION 4.5. LICENSES, APPROVALS, OTHER AUTHORIZATIONS, CONSENTS, REPORTS,
ETC. Purchaser is not required to make, file, give or obtain any registrations,
filings, applications, notices, transfers, consents, approvals, orders,
qualifications, waivers or other actions of any kind with, to or from any
persons or any governmental authorities or private agencies in connection with
the consummation of the transactions contemplated by this Agreement.
SECTION 4.6. LEGALITY. There is no action, claim, suit or proceeding by or
before any court or tribunal in any jurisdiction or any governmental authority
pending nor, is any claim, action, suit, inquiry, proceeding or investigation
pending or threatened against or involving Purchaser, Shareholders or Managers,
or affecting any properties or assets of Purchaser, Shareholders or Managers,
which, in any such case, could reasonably be expected to materially impair the
ability of Purchaser, Shareholders or Managers to consummate the transactions
contemplated hereby. Neither Purchaser, Shareholders nor Managers is subject to
any order, writ, injunction or decree which could reasonably be expected to
materially impair the ability of Purchaser, Shareholders or Managers to
consummate the transactions contemplated hereby.
SECTION 4.7. INVESTMENT REPRESENTATION. Purchaser and Shareholders (a)
understand that none of the Stock has been registered under the Securities Act
of 1933, as amended, or applicable state securities laws; (b) are acquiring the
Stock for Purchaser's own account, for investment and not with a view to the
distribution or resale thereof; and (c) understand that the certificates
representing the Stock to be sold to Purchaser shall bear the following legend:
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The Shares represented by this certificate have not been
registered or qualified under the Securities Act of 1933, as
amended from time to time, or under applicable state
securities laws and may not be sold or transferred in the
absence of such registration or qualification or an
exemption from the registration or qualification
requirements of said Act or laws.
SECTION 4.8. KNOWLEDGE OF INACCURACIES. To the actual knowledge of
Purchaser, Shareholders and Managers, no representation, warranty or statement
made by Seller in this Agreement contains any untrue statement of a material
fact or omits to state a material fact required to be stated herein or therein
necessary to make the statements contained herein or therein not misleading.
SECTION 4.9. UNDERSTANDINGS OR ARRANGEMENTS. As of the date hereof,
neither Purchaser, Shareholders nor Managers is aware of any agreement,
understanding or arrangement involving or affecting the Corporations that may
cause a material beneficial change in the business, prospects, condition
(financial or otherwise) in the business of the Corporations. As of the date
hereof, neither Purchaser, Shareholders nor Managers is aware of any agreement,
understanding or arrangement involving or affecting the Corporations that could
reasonably be expected to result or has resulted in the incurrence of any
indebtedness relating to the Corporations which would not be or has not been
accrued as a liability on the Financial Statements.
SECTION 4.10. OWNERSHIP. Shareholders and Managers are the sole record
and beneficial owners of the issued and outstanding limited liability company
interests of Purchaser. Purchaser is the sole record and beneficial owner of
all of the issued and outstanding stock of U.S. Trucking other than the U.S.
Trucking Stock transferred pursuant to this Agreement.
SECTION 4.11. OPERATION OF BUSINESS. Managers have each been employed by
and have been involved in the conduct of U.S. Trucking's business. To the
knowledge of Purchaser, Shareholders and Managers, U.S. Trucking's business has
been conducted in the ordinary course consistent with past practice of U.S.
Trucking. In that regard, neither Purchaser, Shareholders nor Managers is aware
of any unusual practices involving U.S. Trucking's business. To the knowledge
of Purchaser, Shareholders and Managers, all practices with respect to xxxxxxxx
of accounts receivable and payable of accounts payable have been conducted in
the ordinary course of the conduct of U.S. Trucking's business consistent with
past practice of U.S. Trucking.
SECTION 4.12. NO OUTSIDE RELIANCE. Purchaser and Shareholders have relied
and are relying only upon the statements or representations of Seller made in
this Agreement, together with any certificates or documents required to be
provided by Seller pursuant to this Agreement.
SECTION 4.13. RELEASE BY SHAREHOLDERS AND MANAGERS. Effective upon the
Closing, the Shareholders and Managers, for themselves and their heirs,
executors, administrators, successors and assigns, hereby fully and
unconditionally release and forever discharge and hold harmless the
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Seller and its respective affiliates, employees, officers, directors,
successors and assigns from any and all claims, demands, losses, costs,
expenses (including attorneys' fees and expenses), obligations, liabilities
and/or damages of every kind and nature whatsoever, in each case whether
absolute or contingent, whether liquidated or unliquidated, and whether or
not now existing or known, relating in any way, directly or indirectly, to
the Corporations, that the Shareholders or Managers may now have or may
hereafter claim to have against the Seller, its respective affiliates,
employees, officers, directors, successors or assigns. Notwithstanding the
foregoing, this Section 4.13 shall not affect any party's entitlement to
indemnity, or remedies of the parties for Damages, as defined herein, or for
breaches of or related to this Agreement or the transactions contemplated
hereby, as set forth in Article X or otherwise.
ARTICLE V
SELLER'S COVENANTS
Seller agrees that between the date hereof and the Closing:
SECTION 5.1. CONSUMMATION OF AGREEMENT. The Seller shall use all
commercially reasonable efforts to cause the consummation of the transactions
contemplated hereby in accordance with their terms and conditions.
SECTION 5.2. DISTRIBUTIONS AND REPURCHASES. Seller shall not cause the
Corporations to declare or pay a distribution, payment or dividend of any kind,
nor to approve or effect any repurchase of any of the Stock.
ARTICLE VI
PURCHASER'S COVENANTS
Purchaser agrees that between the date hereof and the Closing:
SECTION 6.1. CONSUMMATION OF AGREEMENT. Purchaser shall use all
commercially reasonable efforts to cause the consummation of the transactions
contemplated hereby in accordance with their terms and conditions.
SECTION 6.2. APPROVALS OF THIRD PARTIES. Purchaser shall use all
commercially reasonable efforts to secure, as soon as practicable after the date
hereof, all necessary approvals and terminations of lawsuits of third parties to
the consummation of the transactions contemplated hereby.
SECTION 6.3. PURCHASER DISCLOSURE. At or prior to the Closing, Purchaser
shall inform the Seller in writing of any events or circumstances, if any, of
which it has obtained actual knowledge prior to the Closing Date and which
events or circumstances would reasonably be expected to have a material adverse
effect on the business condition of U.S. Trucking (the "Known Events or
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Circumstances"). Purchaser is prohibited from making any claim against Seller
based upon any Known Events or Circumstances.
ARTICLE VII
PURCHASER'S CONDITIONS PRECEDENT
Except as may be waived in writing by Purchaser, the obligations of
Purchaser hereunder are subject to the fulfillment at or prior to the Closing
Date of each of the following conditions:
SECTION 7.1. PROCEEDINGS. No action, proceeding or order by any court or
governmental body or agency shall have been threatened, orally or in writing,
asserted, instituted or entered to restrain or prohibit the carrying out of the
transactions contemplated hereby.
SECTION 7.2. NO MATERIAL ADVERSE CHANGE. No material adverse change in the
condition (financial or otherwise), operations, assets, liabilities or business
of the Corporations shall have occurred since the date of the most recent
balance sheet included in the Financial Statements, whether or not such change
shall have been caused by the deliberate act or omission of Seller.
SECTION 7.3. CLOSING DELIVERIES. Purchaser shall have received all
documents referred to in Section 9.1.
ARTICLE VIII
SELLER'S CONDITIONS PRECEDENT
Except as may be waived in writing by Seller, the obligations of Seller
hereunder are subject to fulfillment at or prior to the Closing Date of each of
the following conditions:
SECTION 8.1. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Purchaser, Shareholders and Managers contained herein shall be
true and correct in all material respects as of the Closing Date; and Purchaser
shall have delivered to Seller a certificate of Purchaser's President, dated as
of the Closing Date, to the foregoing effect.
SECTION 8.2. COVENANTS AND CONDITIONS. Purchaser shall have performed and
complied in all material respects with all covenants and conditions required by
this Agreement to be performed and complied with by it prior to the Closing
Date; and Purchaser shall have delivered to Seller a certificate of Purchaser's
President, dated as of the Closing Date, to the foregoing effect.
SECTION 8.3. PROCEEDINGS. No action, proceeding or order by any court or
governmental body or agency shall have been threatened in writing, asserted,
instituted or entered to restrain or prohibit the carrying out of the
transactions contemplated hereby.
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SECTION 8.4. CLOSING DELIVERIES. Seller shall have received all documents
referred to in Section 9.2.
ARTICLE IX
CLOSING DELIVERIES AND POST-CLOSING COVENANTS
SECTION 9.1. DELIVERIES OF THE SELLER. At the Closing, the Seller shall
deliver to Purchaser the following, all of which shall be in form and content
satisfactory to Purchaser and its counsel:
(a) Certificates representing all of the Stock, duly endorsed and in
proper form for transfer to Purchaser by delivery under applicable law, or
accompanied by duly executed instruments of transfer in blank;
(b) A copy of resolutions of the managers or members of the Seller
authorizing the execution, delivery and performance of this Agreement and all
related documents and agreements, certified by the Secretary of the Seller as
being true and correct copies of the originals thereof subject to no
modifications or amendments; and
(c) A certificate of the Secretary of the Seller certifying as to the
incumbency of the directors and officers of the Seller and as to the signatures
of such directors and officers who have executed documents delivered at the
Closing on behalf of the Seller.
SECTION 9.2. DELIVERIES OF PURCHASER. At the Closing, Purchaser,
Shareholders and Managers, as appropriate, shall deliver the following to
Seller:
(a) The Cash Consideration in immediately available funds;
(b) The executed Note, Stock Pledge Agreements, Guaranty, and any
documents reasonably required by Seller related to perfection of the security
interest created by the Stock Pledge Agreements, including but not limited to
UCC forms;
(c) A copy of the resolutions of the members and managers of Purchaser
authorizing the execution, delivery and performance of this Agreement and all
related documents and agreements;
(d) A certificate of the managers of Purchaser, dated the Closing Date, as
to the truth and correctness of the representations and warranties of Purchaser
contained herein on and as of the Closing Date;
(e) A certificate of the managers of Purchaser, dated the Closing Date,
(i) as to the performance of and compliance by Purchaser with all covenants
contained herein on and as of the Closing Date and (ii) certifying that all
conditions precedent of Purchaser to the Closing have been satisfied;
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(f) A certificate of the members of Purchaser certifying as to the
incumbency of the managers of Purchaser and as to the signatures of such members
who have executed documents delivered at the Closing on behalf of Purchaser;
(g) A certificate, dated within fifteen days of the Closing Date, of the
Secretary of State of Purchaser's state of incorporation, establishing that
Purchaser is in existence, and otherwise is in good standing to transact
business in such state; and
(h) U.S. Trucking's financial statements as of March 31, 1998, consisting
of balance sheets, income statement, and statements of operations and cash
flows.
SECTION 9.3. POST-CLOSING COVENANTS OF PURCHASER, SHAREHOLDERS AND
MANAGERS. Purchaser, Shareholders and Managers agree that:
(a) Purchaser, Shareholders and Managers shall cause title to the
vehicles, equipment and other assets listed on Exhibit 9.3 to be properly
transferred to U.S. Trucking within one hundred and eighty (180) days after the
Closing Date; and
(b) Without Seller's prior written consent, such consent not to be
reasonably withheld, Purchaser, Shareholders and Managers shall not cause the
Corporations to transfer any assets other than in the ordinary course of their
business unless and until any and all amounts owed to the Seller under the Note
are paid in full.
SECTION 9.4. FURTHER ASSURANCES. Following the Closing, each party shall
deliver any further instruments of transfer and take all reasonable action as is
reasonably requested by another party and as may be necessary or appropriate to
complete the transactions contemplated by this Agreement.
ARTICLE X
REMEDIES
SECTION 10.1. INDEMNIFICATION. Subject to the terms and conditions of this
Article, Purchaser and Managers hereby agree to indemnify, defend and hold the
Seller and its members, managers, officers, partners, agents, attorneys and
affiliates harmless from and against all losses, claims, obligations, demands,
assessments, penalties, liabilities, costs, damages, attorneys' fees and
expenses (collectively, "Damages") asserted against or incurred by any of such
indemnitees by reason of or resulting from a breach of any representation,
warranty or covenant of Purchaser contained herein or in any exhibit, schedule
or certificate delivered hereunder, or in any agreement executed in connection
with the transactions contemplated hereby. Subject to the terms and conditions
of this Article, Seller hereby agrees to indemnify, defend and hold Purchaser
harmless from and against all Damages asserted against or incurred by Purchaser
by reason of or resulting from a breach of any representation or warranty of
Seller contained herein or in any exhibit,
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schedule or certificate delivered hereunder, or in any agreement executed in
connection with the transactions contemplated hereby.
SECTION 10.2. CONDITIONS OF INDEMNIFICATION. The respective obligations
and liabilities of Purchaser and Seller under Section 10.1 with respect to
claims resulting from the assertion of liability by third parties shall be
subject to the following terms and conditions (the parties are referred to as
the "indemnifying party" and the "party to be indemnified," as the case may be):
(a) Within 20 days (or such earlier time as might be required to avoid
prejudicing the indemnifying party's position) after receipt of notice of
commencement of any action evidenced by service of process or other legal
pleading, the party to be indemnified shall give the indemnifying party written
notice thereof together with a copy of such claim, process or other legal
pleading, and the indemnifying party shall have the right to undertake the
defense thereof by representatives of its own choosing and at its own expense;
provided that the party to be indemnified may participate in the defense with
counsel of its own choice, the fees and expenses of which counsel shall be paid
by the party to be indemnified unless (i) the indemnifying party has agreed to
pay such fees and expenses, (ii) the indemnifying party has failed to assume the
defense of such action or (iii) the named parties to any such action (including
any impleaded parties) include both the indemnifying party and the party to be
indemnified and the party to be indemnified has been advised by counsel that
there may be one or more legal defenses available to it that are different from
or additional to those available to the indemnifying party (in which case, if
the party to be indemnified informs the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the party to be indemnified, it being understood, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for the party to be indemnified, which firm shall be designated in writing
by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after
receipt of notice of any such claim (or, if earlier, by the 10th day preceding
the day on which an answer or other pleading must be served in order to prevent
judgment by default in favor of the person asserting such claim), does not elect
to defend against such claim, the party to be indemnified will (upon further
notice to the indemnifying party) have the right to undertake the defense,
compromise or settlement of such claim on behalf of and for the account and risk
of the indemnifying party and at the indemnifying party's expense, subject to
the right of the indemnifying party to assume the defense of such claims at any
time prior to settlement, compromise or final determination thereof.
(c) Notwithstanding the foregoing, the indemnifying party shall not settle
any claim without the consent of the party to be indemnified unless such
settlement involves only the payment of money and the claimant provides to the
party to be indemnified a release from all liability in respect of such claim.
If the settlement of the claim involves more than the payment of money, the
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indemnifying party shall not settle the claim without the prior consent of the
party to be indemnified.
SECTION 10.3. WAIVER. No waiver by any party of any default or breach by
another party of any representation, warranty, covenant or condition contained
in this Agreement, any exhibit or any document, instrument or certificate
contemplated hereby shall be deemed to be a waiver of any subsequent default or
breach by such party of the same or any other representation, warranty, covenant
or condition. No act, delay, omission or course of dealing on the part of any
party in exercising any right, power or remedy under this Agreement or at law or
in equity shall operate as a waiver thereof or otherwise prejudice any of such
party's rights, powers and remedies. All remedies, whether at law or in equity,
shall be cumulative and the election of any one or more shall not constitute a
waiver of the right to pursue other available remedies.
SECTION 10.4. INDEMNIFICATION SOLE REMEDY. The indemnification contained in
this Agreement shall be deemed to be the exclusive remedy of the indemnified
party in connection with or arising from any failure by the Indemnifying Party
to perform any of its covenants or obligations in this Agreement or in the
agreements related hereto or any breach by the indemnifying party of any
representation or warranty or the inaccuracy of any representation or warranty
of the indemnifying party contained in this Agreement.
SECTION 10.5. COSTS, EXPENSES AND LEGAL FEES. Whether or not the
transactions contemplated hereby are consummated, Purchaser and Seller shall
bear their respective costs and expenses (including attorneys' fees and
expenses) incurred in connections with the transactions contemplated herein,
except that each party hereto that is shown to have breached this Agreement or
any other agreement contemplated hereby agrees to pay the costs and expenses
(including reasonable attorneys' fees and expenses) incurred by any other party
in successfully (i) enforcing any of the terms of this Agreement against such
breaching party or (ii) proving that another party breached any of the terms of
this Agreement.
ARTICLE XI
TERMINATION
SECTION 11.1. TERMINATION. This Agreement may be terminated:
(a) At any time prior to the Closing Date by mutual agreement of all
parties.
(b) At any time prior to the Closing Date by Purchaser if (i) any material
representation or warranty of the Seller contained in this Agreement is or
becomes untrue or breached in any material respect or (ii) Seller fails to
comply in any material respect with any covenant contained herein; provided,
however, in either (i) or (ii) above, only if any such misrepresentation,
noncompliance or breach is not cured, waived or eliminated within fifteen days.
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(c) At any time prior to the Closing Date by the Seller if (i) any
material representation or warranty of Purchaser, Shareholders or Managers
contained in this Agreement is or becomes untrue or breached in any material
respect or (ii) Purchaser, Shareholders or Managers fail to comply in any
material respect with any covenant contained herein; provided, however, in
either (i) or (ii) above, only if, any such misrepresentation, noncompliance or
breach is not cured, waived or eliminated within fifteen days.
(d) After the Closing Date by Purchaser if the conditions stated in
Article VII have not been satisfied by the Closing Date.
(e) After the Closing Date by Seller if the conditions stated in Article
VIII have not been satisfied by the Closing Date.
In the event this Agreement is terminated pursuant to subparagraph (b), (c), (d)
or (e) above, Purchaser and Seller shall each be entitled to pursue, exercise
and enforce any and all remedies, rights, powers and privileges available at law
or in equity. In the event of a termination of this Agreement under the
provisions of this Article, a party not then in material breach of this
Agreement shall stand fully released and discharged of any and all obligations
under this Agreement.
ARTICLE XII
MISCELLANEOUS
SECTION 12.1. AMENDMENT. This Agreement may be amended, modified or
supplemented only by an instrument in writing executed by all the parties
hereto.
SECTION 12.2. ASSIGNMENT. Neither this Agreement nor any right created
hereby or in any agreement entered into in connection with the transactions
contemplated hereby shall be assignable by any party hereto.
SECTION 12.3. PARTIES IN INTEREST; NO THIRD PARTY BENEFICIARIES. Except as
otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective heirs, legal
representatives, successors and assigns of the parties hereto. Neither this
Agreement nor any other agreement contemplated hereby shall be deemed to confer
upon any person not a party hereto or thereto any rights or remedies hereunder
or thereunder.
SECTION 12.4. ENTIRE AGREEMENT. This Agreement and the agreements
contemplated hereby constitute the entire agreement of the parties regarding the
subject matter hereof, and supersede all prior agreements and understandings,
both written and oral, among the parties, or any of them, with respect to the
subject matter hereof.
SECTION 12.5. SEVERABILITY. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws effective
during the term hereof, such provision shall be fully severable and this
Agreement shall be construed and enforced as if such illegal, invalid or
13
unenforceable provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its severance
herefrom. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as part of this Agreement a
provision as similar in its terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
SECTION 12.6. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS (BUT NOT THE RULES GOVERNING CONFLICTS OF
LAWS) OF THE STATE OF TEXAS.
SECTION 12.7. CAPTIONS. The captions in this Agreement are for convenience
of reference only and shall not limit or otherwise affect any of the terms or
provisions hereof.
SECTION 12.8. GENDER AND NUMBER. When the context requires, the gender of
all words used herein shall include the masculine, feminine and neuter and the
number of all words shall include the singular and plural.
SECTION 12.9. REFERENCE TO AGREEMENT. Use of the words "herein", "hereof",
"hereto" and the like in this Agreement shall be construed as references to this
Agreement as a whole and not to any particular Article, Section or provision of
this Agreement, unless otherwise noted.
SECTION 12.10. CONFIDENTIALITY; PUBLICITY AND DISCLOSURES. Each party
shall keep this Agreement and its terms confidential, and shall make no press
release or public disclosure, either written or oral, regarding the transactions
contemplated by this Agreement without the prior knowledge and consent of the
other parties hereto; provided that the foregoing shall not prohibit any
disclosure (i) by press release, filing or otherwise that is required by federal
securities laws or (ii) to attorneys, accountants, investment bankers or other
agents of the parties assisting the parties in connection with the transactions
contemplated by this Agreement.
SECTION 12.11. NOTICE. Any notice or communication hereunder or in any
agreement entered into in connection with the transactions contemplated hereby
must be in writing and given by depositing the same in the United States mail,
addressed to the party to be notified, postage prepaid and registered or
certified with return receipt requested, or by delivering the same in person or
by facsimile transmission. Such notice shall be deemed received on the date on
which it is hand-delivered or received by facsimile transmission or on the third
business day following the date on which it is so mailed. For purposes of
notice, the addresses of the parties shall be:
If to Purchaser: Logistics Management, LLC
--------------
--------------
14
If to Seller: Precept Transportation Services, L.L.C.
--------------
--------------
with a copy to: Xxxxxxx X. Xxxxxxx, Xx.
Xxxxxxx Xxxxxx L.L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Any party may change its address for notice by written notice given to the other
parties in accordance with this Section.
SECTION 12.12. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
Unless stated otherwise, the representations, warranties and covenants contained
herein shall survive the Closing for a period of nine months. Notwithstanding
the above, if prior to any expiration date the indemnifying party shall have
been notified of a claim for indemnity hereunder and such claim shall not have
been finally resolved or disposed of at such date, any representation or
warranty that is the basis for such claim shall continue to survive as to such
claim and shall remain a basis for indemnity, to the extent of such claim only,
until such claim is finally resolved or disposed of.
SECTION 12.13. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
15
EXECUTED as of the date first above written.
PURCHASER:
----------
LOGISTICS MANAGEMENT, LLC
By: /s/ Xxxxxxx Xxxx
------------------------------------
Name: Xxxxxxx Xxxx
----------------------------------
Title: Manager
---------------------------------
SELLER:
-------
PRECEPT TRANSPORTATION SERVICES, L.L.C.
By: /s/ Xxxxx Xxxxx
------------------------------------
Xxxxx Xxxxx, Manager
SHAREHOLDERS:
-------------
ASSOCIATION SERVICES, INC.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
----------------------------------
Title: President
---------------------------------
/s/ Xxxxxxx Xxxxxx
---------------------------------------
Xxxxxxx Xxxxxx
MANAGERS:
---------
/s/ Xxx Xxxxxx
---------------------------------------
Xxx Xxxxxx
/s/ Xxxxxxx Xxxx
---------------------------------------
Xxxxxxx Xxxx
